TOW ARD A CRITICAL RACE REALISM*

Gregory Scott Parks**

Like men we'll face the murderous, cowardly pack, Pressed to the wall, dying, but fighting back! -Claude McKay 1

INTRODUCTION ...... 684 I. CRITICAL RACE REALISM: AN INTELLECTUAL HISTORY OF CONSTITUENT FEATURES ...... 686 A. INTERDISCIPLINARITY IN EARLy AMERICAN LEGAL EDUCATION ...... 686 B. HOLMES, BRANDEIS, CARDOZO, AND POUND ...... 689 C. Ivy LEAGUE lcONOCLASTS AT COLUMBIA AND YALE LAW SCHOOLS ...... 691 1. Legal Realism ...... 691 2. The Law Policy Science Movement...... 696 3. Yale's Divisional Studies Program ...... 698 D. THE LAW "AND" MOVEMENT AND ITS PROGENY . . . . . 699 1. Law and Economics Movement ...... 699 2. Law and Society Movement ...... 700

* This Note is an expanded version of Gregory Parks, Toward a Critical Race Realism, in CRITICAL RACE REALISM: INTERSECTIONS OF PSYCHOLOGY, RACE, AND LAW (Gregory Parks, Shayne Jones, and W Jonathan Cardi eds., 2008) reprinted by permission of The New Press. ** B.S., Howard University; M.S., City University of New York; Ph.D., University of Kentucky; J.D., Cornell Law School. Let me thank the following people for their helpful comments and suggestions on various drafts of this note: Valerie Hans (Cornell Law School), Sherri Lynn Johnson (Cornell Law School), Shayne Jones (University of South Florida De­ partment of Criminology), W. Jonathan Cardi (University of Kentucky College of Law), Rich­ ard Delgado (University of Pittsburgh School of Law), Analisa Jabaily (Johns Hopkins University Office of the Vice President and General Counsel), Roger Fairfax (George Wash­ ington University Law School), Brian Gran (Case Western Reserve University Law School and Department of Sociology), William Fortune (University of Kentucky College of Law), Lori Ringhand (University of Kentucky College of Law). 1 Claude McKay, If We Must Die, in AFRO-AMERICAN WRITING: AN ANTHOLOGY OF PROSE AND POETRY 344, 344 (Richard A. Long & Eugenia W. Collier eds., 2d ed. 1985). In his poem, McKay encourages doomed resistance, quite the way Critical Race Theorists contend that racism is part of the American psyche, the very fabric of America, yet encourage resis­ tance to such racism. For a critical race theorist's perspective, see Derrick Bell, Racism Is Here to Stay Now What?, in THE DERRICK BELL READER 85-90 (Richard Delgado & Jean Stefancic eds., 2005). Similarly, I argue within this Note that although racism against black Americans will likely exist, in various forms, into perpetuity, our interests would be best served by mar­ shalling a systematic attack against it. This attack, from the legal standpoint, necessitates the use of (empirical) social science geared towards altering public policies affecting blacks.

683 684 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 17:683

a. Critical Legal Studies ...... 702 b. Critical Race Theory ...... 704 II. CRITICAL RACE REALISM: A DEFINITION AND DEVELOPMENT(S) ...... 707 A. CONTIGUOUS MODELS: EMPIRICAL LEGAL STUDIES, THE NEW LEGAL REALISM PROJECT, AND BEHAVIORAL REALISM...... 708 B. CRITICAL RACE REALISM: CRITICAL RACE THEORY AND CONTEMPORARY MOVEMENTS ...... 713 1. A Systematic Analysis of Race, Social Science, and Law Scholarship ...... 714 2. An Integrative Model ...... 738 3. Creating a Critical Race Realism ...... 743 CONCLUSION...... 745

INTRODUCTION A historical account of American law shows a dramatic irony; the law has served as a tool to both oppress and liberate Blacks.2 In the face of such oppression, a handful of lawyers3 and law professors4 have used the law for progressive, social change. Among the latter, Critical Race Theorists have been in the vanguard of providing "a race-based, system­ atic critique of legal reasoning and legal institutions."5 In 2002, Temple University Press published Crossroads, Directions, and a New Critical Race Theory. 6 The volume is comprised largely of papers and speeches

2 See generally DERRICK A. BELL, RACE, RACISM AND AMERICAN LAW (4th ed. 2000) (providing a general account of topics dealing with race and the law); JACK GREENBERG, CRU­ SADERS IN THE COURTS: How A DEDICATED BAND OF LAWYERS FOUGHT FOR THE CIVIL RIGHTS REVOLUTION (1994) (providing a history of civil rights lawyering); A. LEON HIGGIN­ BOTHAM, JR., lN THE MATTER OF COLOR: RACE AND THE AMERICAN LEGAL PROCESS: THE COLONIAL PERIOD (1978) (providing a history of race and law during America's colonial pe­ riod); A. LEON HIGGINBOTHAM, JR., SHADES OF FREEDOM: RACIAL POLITICS AND PRESUMP­ TIONS OF THE AMERICAN LEGAL PROCESS (1996) (providing a general history of issues dealing with race and the law); RICHARD KLuGER, SIMPLE JUSTICE: THE HISTORY oF BROWN v. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY (1977) (providing a history of Brown v. Board of Education, 347 U.S. 483 (1954)); MARK V. TusHNET, THE NAACP's LEGAL STRATEGY AGAINST SEGREGATED EDUCATION, 1925-1950 (1987) (providing a histori­ cal account of the NAACP's efforts to end school segregation). 3 See, e.g., GREENBERG, supra note 2; KLuGER, supra note 2; GENNA RAE McNEIL, GROUNDWORK: CHARLES HAMILTON HOUSTON AND THE STRUGGLE FOR CIVIL RIGHTS (1983) (highlighting the efforts of Houston as a civil rights lawyer); TusHNET, supra note 2. 4 See, e.g., CRmCAL RACE THEORY: THE CUTTING EDGE (Richard Delgado & Jean Stefancic eds., 2000) (synthesizing key Critical Race Theory writings); CRmcAL RACE THE­ ORY: THE KEY WRITINGS THAT FoRMED THE MOVEMENT (Kimberle Crenshaw et al. eds., 1995) (synthesizing key Critical Race Theory writings); CROSSROADS, DIRECTIONS, AND A NEw CRmCAL RACE THEORY (Francisco Valdes et al. eds., 2002) [hereinafter CROSSROADS] (providing a future vision of Critical Race Theory). 5 Delgado & Stefancic, supra note 4, at xix. 6 CROSSROADS, supra note 4. 2008] TowARD A CRITICAL RACE REALISM 685 presented in 1997 at the Critical Race Theory Conference held at Yale Law School in commemoration of Critical Race Theory's tenth anniver­ sary.7 In one of the many commentaries that followed the release of Crossroads, 8 Boalt Law Professor Rachel Moran noted that the work captures a discipline at a crossroads, struggling to define its substantive mission, methodological commitments, and connection to the world outside of academia.9 Almost ten years after the Yale conference and four years after Crossroads' publication, Critical Race Theory continues to grapple with these same issues. Thus, this Note sets forth a particular methodology called Critical Race Realism. 10 Critical Race Realism is a synthesis of Critical Race Theory, empirical social science, and public policy. 11 This methodology has both academic and applied components. Furthermore, its mission is to provide a systematic, race-based evaluation and critique of legal doc­ trine, institutions, and actors-e.g., judges, juries, etc. By employing so­ cial science, Critical Race Realism should (1) expose racism where it may be found, (2) identify racism' s effects on individuals and institu­ tions, and (3) put forth a concerted attack against racism, in part, via public policy arguments. Part I of this Note provides a backdrop to un­ derstand Critical Race Realism. It explores the histories of the various actors who, and movements that, inform our understanding of Critical

7 See id. at xi. 8 See Ian Ayres, ls Discrimination Elusive?, 55 STAN. L. REv. 2419 (2003); Devon W. Carbado & Mitu Gulati, The Law and Economics ofCritical Race Theory, 112 YALE L.J. 1757 (2003); Mary Anne Case, Developing a Taste for Not Being Discriminated Against, 55 STAN. L. REv. 2273 (2003); Jerome M Culp, Jr. et al., Subject Unrest, 55 STAN. L. REv. 2435 (2003); Richard Delgado, Crossroads and Blind Alleys: A Critical Examination of Recent Writing About Race, 82 TEx. L. REv. 121 (2003); Clark Freshman, Foreword: Revisioning the Con­ stellations of Critical Race Theory, Law and Economics, and Empirical Scholarship, 55 STAN. L. REV. 2267 (2003) [hereinafter Freshman, Foreward: Revisioning the Constellations]; Clark Freshman, Prevention Perspectives on "Different" Kinds of Discrimination: From Attacking Different "Isms" to Promoting Acceptance in Critical Race Theory, Law and Economics, and Empirical Research, 55 STAN. L. REv. 2293 (2003) [hereinafter Freshman, Prevention Per­ spectives]; Kevin Haynes, Taking Measures, 55 STAN. L. REv. 2349 (2003). 9 Rachel F. Moran, The Elusive Nature of Discrimination, 55 STAN. L. REv. 2365, 2365-67 (2003). 1O See Emily M. S. Houh, Critical Race Realism: Re-Claiming the Antidiscrimination Principle Through the Doctrine of Good Faith in Contract Law, 66 U. Prrr. L. REV. 455, 457 (2005) (arguing that "critical race realism encompasses not only the goals and methodologies of the broader critical race ... projects, but also some of the shared goals and methodologies of legal realism."); see also Derrick Bell, Racial Realism, 24 CoNN. L. REv. 363, 363-64 (1992) ("Black people need reform in our civil rights strategies as badly as those in the law needed a new way to consider American jurisprudence prior to the advent of the Legal Real­ ists.... Racial Realism ... is a legal and social mechanism on which blacks can rely to have their voice and outrage heard."). I I I do not propose that this piece is the first attempt to synthesize Critical Race Theory, empirical social science, and public policy. Recent Critical Race Theorists have put forth an effort to address issues at the intersection of Critical Race Theory and social science. See, e.g., Delgado & Stefancic, supra note 4, at 129-79. 686 CORNELL JouRNAL OF LAW AND PUBLIC POLICY [Vol. 17:683

Race Realism. Part II defines Critical Race Realism by example and elaborates on those elements that comprise it.

I. CRITICAL RACE REALISM: AN INTELLECTUAL HISTORY OF CONSTITUENT FEATURES This section highlights the many movements and individuals that inform us about what constitutes Critical Race Realism today and its po­ tential in the future. Subpart A explores how early American legal edu­ cation came to tolerate interdisciplinary studies. Subpart B highlights the contributions of Supreme Court Justices Holmes, Brandeis, and Cardozo and Harvard Law School Dean Roscoe Pound toward the acceptance of social science within American jurisprudence, the study of law in action, and the use of law to advance public policy. Subpart C explores the work of academics at both Columbia and Yale Law Schools and their efforts toward extending a new way of looking at the law-one that is functional in its approach, debunks commonly held legal ideologies, and integrates social science with the law, and law with public policy. Sub­ part D investigates the development of the law "and" movement, its progeny, and how they extended our understanding of law and social science. The Subpart also provides critiques of legal doctrine, institu­ tions, and actors.

A. INTERDISCIPLINARITY IN EARLy AMERICAN LEGAL EDUCATION Since its inception in the early 1700s, American legal education has evolved considerably; one such evolution is its interdisciplinary growth. At its beginning, there were two avenues to joining the bar: young "men" could go to England and acquire legal training at the Inns of Court, 12 or they could read law in the office of an established practitioner. 13 The latter model, ultimately the more popular, consisted of an apprenticeship coupled with a formal examination. 14 These apprenticeships gave birth to early, freestanding American law schools. 15 The oldest, largest, and most influential was Connecticut's Litchfield Law School, founded in 1784. 16 By the early 1820s, many such proprietary law schools merged

12 MARIAN C. MCKENNA, TAPPING REEVE AND THE LITCHAELD LAW SCHOOL I (1986); H1sTORY OF THE YALE LAW ScHooL: THE TERCENTENNIAL LECTURES 19 (Anthony T. Kronman ed., 2004) [hereinafter YALE LAW SCHOOL]. 13 McKENNA, supra note 12, at I; ROBERT STEVENS, LAW SCHOOL: LEGAL EDUCATION IN AMERICA FROM THE 1850s rn THE 1980s 3 (1983). 14 YALE LAW SCHOOL, supra note 12, at 19-20; STEVENS, supra note 13, at 3. 15 McKENNA, supra note 12, at 60; STEVENS, supra note 13, at 5. Colleges such as Co­ lumbia successfully mounted a take-over bid for a proprietary school operated at Hamilton College, and Harvard subsumed the Northampton Law School. See YALE LAW ScHooL, supra note 12, at 23. 16 McKENNA, supra note 12, at 17. 2008] TowARD A CRITICAL RACE REALISM 687 with local, established colleges. 17 These mergers gave private law schools prestige and the ability to grant degrees and also possibly pro­ vided colleges with greater influence among local lawyers, who were part of a powerful elite. 18 Thirty years later, such institutionalized, east­ ern law schools like those at Columbia University, New York University, and the University of Pennsylvania were founded. 19 Harvard is credited with establishing the first modem, American law school.20 From 1870 to 1895, Christopher Columbus Langdell served as its dean.21 During his deanship, Harvard Law School shaped the early "structure and content" of other American law schools.22 Lang­ dell shifted legal education from the undergraduate level to an eighteen­ month, and then three-year, post-baccalaureate degree program.23 He also hired the first career law professor,24 instituted rigorous examina­ tions, required a college-degree for admission,25 and developed a system of teaching that focused on appellate case analysis26 and Socratic ques­ tioning. 27 In 1873, James Barr Ames was appointed assistant professor of law at Harvard Law School, and it was Ames who turned the case method into "a faith." 28 By then, Harvard's curriculum was largely pro­ fessionally oriented and based on its 1852 curriculum that was adapted during Langdell's time. 29 Harvard's size and influence had a tremendous impact on other university-affiliated law schools. 30 As such, many law schools emulated Harvard's academic approach, and those that did not found it difficult to resist Harvard's growing influence.31

17 STEVENS, supra note 13, at 5. 18 Id. 19 Id. at 21. 20 JoEL SELIGMAN, THE HIGH CITADEL: THE INFLUENCE OF HARVARD LAW SCHOOL 20 (1978). 21 Id. at 20. 22 STEVENS, supra note 13, at 35. 23 SELIGMAN, supra note 20; STEVENS, supra note 13, at 36. 24 SELIGMAN, supra note 20. 25 Id. 26 Id.; STEVENS, supra note I3, at 36. 27 SELIGMAN, supra note 20. 28 STEVENS, supra note 13, at 38. 29 ALFRED Z. REED, TRAINING FOR THE PUBLIC PROFESSION OF THE LAW: HISTORICAL DEVELOPMENT AND PRINCIPAL CONTEMPORARY PROBLEMS OF LEGAL EDUCATION IN THE UNITED STATES WITH SOME ACCOUNT OF THE CoNDmONS IN ENGLAND AND CANADA 458 (1921). By 1852, the curriculum consisted of Blackstone and Kent, Property, Equity, Con­ tracts, Bailments and Corporations, Partnership and Agency, Shipping and Constitutional Law, Pleading and Evidence, Insurance and Sales, Conflicts, Bills and Notes, Criminal Law, Wills, Arbitration, Domestic Relations, and Bankruptcy. 30 Id. at 458. After 1870, the following were added: Torts, Jurisprudence, Federal Proce­ dure, Trusts, Mortgages, Suretyship, Quasi-Contracts, Damages, Municipal Corporations, Re­ straint of Trade. Bailments had become Carriers, and Blackstone and Kent were dropped. 31 STEVENS, supra note 13, at 39. 688 CORNELL JouRNAL OF LAw AND PuBuc Poucv [Vol. 17:683

While few law schools deviated from Harvard's approach, the entire legal academic world during the late 1800s was not of one accord. Some believed that the law was insufficient in and of itself to answer legal questions, and thus advocated reaching beyond the strict confines of le­ gal instruction. For example, after 1869, Yale Law School permitted stu­ dents to enroll in other departmental courses such as political science, economics, English history, and ethics.32 In addition, from 1874 onward, Yale Law School attempted to develop a broad curriculum that included courses with an interdisciplinary flavor. 33 During the 1880s, the Ameri­ can Bar Association recommended the addition of social science to the legal curriculum.34 At its founding in the late 1800s,35 Cornell Law School encouraged its students to take courses in the School of History and Political Science. 36 In the 1890s, Catholic University housed its law school within the School of Social Sciences. 37 Columbian (modem day George Washington) University's President referred to Columbian Law School as the Columbian School of Comparative Jurisprudence.38 Fur­ ther, Georgetown Law School offered such interdisciplinary courses as legal ethics, legal philosophy, and legal history.39 American legal education continues to resemble the model set forth by Langdell and extended by Ames at Harvard _Law School between 1870 and 1910.40 However, law schools made significant strides in de­ veloping a curriculum that reached outside of the law. More than simply being interdisciplinary, social science became a growing part of legal education.41 Though its presence has vacillated over time, its influence is again on the rise.

3 2 John H. Langbein, Law School in a University: Yale's Distinctive Path in the Later Nineteenth Century, in YALE LAW SCHOOL, supra note 12, at 65. 33 REED, supra note 29, at 302-03. Specifically, it offered such first-year courses as History of American Law, General Jurisprudence and Common Law, Medical Jurisprudence, and Methods of Study and Mental Discipline. 34 STEVENS, supra note 13, at 69 n.49 ("The 1881 [ABA] committee also agreed that ideally there should be more social science in the law school curriculum, to prepare the lawyer for his roles as lawyer, party leader, diplomat, director of finance or education, judge, legisla­ tor, and statesman."), 35 See Cornell Law School History Page, http://www.lawschooLcornell.edu/about/his­ tory.cfm (last visited May 11, 2008); see also STEVENS, supra note 13, at 74. 36 STEVENS, supra note 13, at 74. 37 PETER E. HOGAN, THE CATHOLIC UNIVERSITY OP AMERICA, 1896-1903: THE RECTOR­ SHIP OP THOMAS J. CONATY 51 (1949). 38 JosEPH T. DURKIN, GEORGETOWN UNIVERSITY: THE MIDDLE YEARS 1840-1900, at 95 (1963), 39 ELMER Lorns KAYSER, BRICKS WITHOUT STRAW: THE EVOLUTION OP GEORGE WASH­ INGTON UNIVERSITY 150 (1970), 4 0 ARTHUR E, SUTHERLAND, THE LAW AT HARVARD: THE HISTORY OP IDEAS AND MEN, 1817-1967 (1967). The deanships ofLangdell (1870-1895) and Ames (1895-1910) spanned forty years. /d. 41 See STEVENS, supra note 13, at 131-41. 2008] TowARD A CRITICAL RACE REALISM 689

B. HOLMES, BRANDEIS, CARDOZO, AND POUND Law schools were not the only forces expanding the conceptual bounds of the law. Four men at the tum of the twentieth century ad­ vanced the idea that law is more than what is in books, argued for broader conceptions of law's utility, and reasoned that extra-legal factors enhance our understanding of the law. These men were U.S. Supreme Court Justices Oliver Wendell Holmes, Jr., Louis Brandeis, and Benja­ min Cardozo as well as former Harvard Law School Dean Roscoe Pound.42 Each man served as a forefather of Legal Realism, an area of jurisprudence that dominated the mid-twentieth century.43 Like the Realists who followed, Holmes highlighted the real-world aspect of the law when he noted that the "life of the law has not been logic; it has been experience."44 He also emphasized how extra-legal factors had tremendous bearing on the law. Whether it was the "felt necessities of time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, [or] the prejudices which judges share with their fellow men," law was at least in part governed by factors that fell outside the law. 45 As such, Holmes did not simply con­ tend that social science was important in order to understand the law46- he posited that contemporary pupils' focus on black-letter law would give way to a legal field wherein "the man of the future is the man of statistics and the master of economics."47 Holmes thus articulated a vi­ sion of what the law and legal profession would, or should, become.48 Brandeis' contribution to the Realists was methodological-as he was the first lawyer to employ social science data in litigation-as part of a strategy aimed towards defending a social policy against constitu-

42 See GARY JAN AICHELE, LEGAL REALISM AND TWENTIETH-CENTURY AMERICAN JURIS­ PRUDENCE: THE CHANGING CONSENSUS, 13-25, 30-43 (1990); ROBERT SAMUEL SUMMERS, INSTRUMENTALISM AND AMERICAN LEGAL THEORY 22-37 (1982) (placing Holmes and Pound among the founders of Pragmatic Instrumentalism-a variant of Legal Realism); Robbin E. Smith, William 0. Douglas and American Legal Realism: Continuity Through Change 53-80 (Jan. 1998) (unpublished Ph.D. dissertation, Boston University) (on file with Mugar Memorial Library, Boston University). 43 See AMERICAN LEGAL REALISM 3 (William W. Fisher III et al. eds., 1993); see also WILLIAM TWINING, KARL LLEWELLYN AND THE REALIST MOVEMENT 22-23 (1973); Smith, supra note 42, at 53-82. 44 OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (1881). 45 See id. 46 Oliver Wendell Holmes, Jr., The Profession of the Law, Lecture Before Undergradu­ ates of Harvard Univeristy (Feb. 17, 1886), in 3 THE COLLECTED WORKS OF JusncE HOLMES: COMPLETE PuBLIC WRITINGS AND SELECTED JuDICIAL OPINIONS OF OLIVER WENDELL HOLMES 471, 472 (Sheldon M. Novick ed., 1995). 47 Oliver Wendell Holmes, The Path of the Law, in COLLECTED LEGAL PAPERS 167 (1920). 48 JEROME FRANK, LAw AND THE MODERN MIND 270 (1930). Frank, a Realist, stated of Holmes, "[W]hatever clear vision of legal realities we have attained in this country in the past twenty five years is in large measure due to [Holmes]." 690 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 17:683 tional attack.49 In his Muller v. Oregon50 brief, Brandeis used statistics to support his claim that long work hours were dangerous to the health of women and, ultimately, to their communities.51 Cardozo was also an "eminent pioneer of the 'realist' movement."52 He was the first to speak to the various modes of judicial thinking that were not wholly consistent with traditional logic.53 Cardozo theorized that there were four approaches to judicial decisionmaking: philosophy, evolution, tradition, and sociology. The philosophical approach was analogous to adherence to precedent.54 The evolutionary approach em­ phasized the historical development of a field of law.55 The traditional approach referred to community customs.56 To Cardozo, the sociological approach was a gap-filler57-insofar as he believed the judge should em­ ploy the law as a means to an end for the "good of the collective body ."58 The latter approach was remarkable given the times in which Cardozo made this pronouncement, and the Realists quickly seized on it. Pound became the immediate precursor to Realists.59 Generally, Pound believed in an interdisciplinary approach to understanding the law.60 In 1905, he called for a philosophy of law founded on social and political science.61 In 1910, he pled for teachers who could train law students in sociology, economics, and politics to" 'fit new generations of lawyers'" to not simply render good service but "'to lead the people.' "62 That same year, he urged scholars not simply to study "law on the books" but also to study "law in action,"63 harkening back to Holmes'

49 Smith, supra note 42, at 61. 50 208 U.S. 412 (1908). 51 Brief for the State of Oregon, Muller v. Oregon, 208 U.S. 412 (1908); see also Smith, supra note 42, at 61. 52 BERYL H. LEVY, CARDOZO AND THE FRONTIERS OF LEGAL THINKING 19 (2000); see also Smith, supra note 42, at 69-75. 53 See BERYL, supra note 52, at 19. 54 BENJAMIN CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 34 (2d ed. J949). 55 Id. at 52. 56 Id. at 63. 57 Id. at 69, 71. 58 Id. at 72, 102. 59 G. Edward White, From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early Twentieth-Century America, 58 VA. L. REv. 999 (1972). 60 Michael Ray Hill, Roscoe Pound and American Sociology: A Study in Archival Frame Analysis, Sociobiography, and Sociological Jurisprudence 386-576, (May 8, 1989) (un­ published Ph.D. dissertation, University of Nebraska-Lincoln) (on file with Library Depository Retrieval Facility, University of Nebraska-Lincoln). 61 Roscoe Pound, Do We Need a Philosophy of Law?, CoLUM. L. REv. 339, 344, 351 (1905). 62 JEROLD L. AUERBACH, UNEQUAL JUSTICE: LAWYERS AND SOCIAL CHANGE IN MODERN AMERICA 82-83 (1976) (quoting Roscoe Pound, The Need ofa Sociological Jurisprudence, 19 GREEN BAG 607, 611-12 (1907)). 63 Roscoe Pound, Law in Books and Law in Action, 44 AM. L. REv. 12 (1910). 2008] TowARD A CRITICAL RACE REALISM 691 thoughts about the life of the law. 64 Thus, Pound called for an analysis of law not only in theory but in practice, as well, in order to ascertain how law impacted people's lives. In the 1911 and 1912 issues of the Harvard Law Review, Pound announced and defined a vision of "Socio­ logical Jurisprudence."65 Among its elements, he argued for the realiza­ tion of "the backwardness of law in meeting social ends,"66 insistence upon the social effects of the law,67 and a belief in "the equitable applica­ tion of law."68 Not surprisingly, Pound is described as one who did more than any of his contemporaries in emphasizing the "social effects of law and [ ] relat[ing] legal thinking to the social sciences."69

C. Ivy LEAGUE lcoNOCLASTS AT COLUMBIA AND YALE LAW SCHOOLS The writings of Holmes, Brandeis, Cardozo, and Pound made way for new thinking in the legal academy. Their ideas-that law should be employed as a means to certain ends, the utility of social science to law, and that law is not logic but real-world experience-resonated with professors at Columbia and Yale law schools. These professors seized upon the ideas of Holmes, Brandeis, Cardozo, and Pound and set about divining a new American jurisprudence through the Realist and Law, Science, and Policy movements as well as the Yale Divisional Studies Program.

1. Legal Realism In 1916, Thomas Swan assumed the deanship at Yale Law School, and by November of that year, he had proposed to Yale's president that the law school should expand into the Yale School of Law and Jurispru­ dence.70 The proposal seemingly reflected the views of Arthur Corbin 71 and possibly Karl Llewellyn-professor and student, respectively - who both later became key architects of Legal Realism. Their work, and

64 See supra text accompanying notes 44-48. 65 N.E.H. HULL, ROSCOE POUND AND KARL LLEWELLYN: SEARCHING FOR AN AMERICAN JuRISPRUDENCE 81-85 (1997); DAVID WIGDOR, ROSCOE POUND: PHILOSOPHER OF LAW 183-205 (1974); Roscoe Pound, The Scope and Purpose of Sociological Jurisprudence, 24 HARV. L. REv. 591 (1911); Roscoe Pound, The Scope and Purpose of Sociological Jurispru­ dence, 25 HARV. L. REv. 489 (1912) [hereinafter Pound, Sociological Jurisprudence (1912)]. 66 Pound, Sociological Jurisprudence (1912), supra note 65, at 510. 67 Id. at 514. 68 Id. at 515. 69 AUERBACH, supra note 62, at 149. See generally WILFRED E. RUMBLE, JR., AMERICAN LEGAL REALISM: SKEPTICISM, REFORM, AND THE JUDICIAL PROCESS 9-20 (1968) (providing a more in-depth look at Pound's impact on the Realists); see also Terry Di Filippo, Roscoe Pound's Jurisprudence: Interest Theory in Legal Philosophy 256-315 (Aug. 1987) (unpub­ lished Ph.D. dissertation, SUNY Buffalo) (on file with Lockwood Library, SUNY Buffalo). 70 STEVENS, supra note 13, at 135. 71 See id. 692 CORNELL JouRNAL OF LAw AND PUBLIC POLICY [Vol. 17:683 the work of others at Columbia and Yale law schools during the early to mid-twentieth century,72 helped to define a new agenda for legal educa­ tion and practice. Legal Realism was not a monolithic school of thought. There were, broadly, three types of Realists: (1) the critical oppositional variant that sought to expose the contradictions in classical legal formalism, (2) the social scientific variant that employed the insights and methods of the empirical sciences, and (3) the practical political variant that designed, made, and enforced reform policies.73 The Realists' jurisprudence was most appropriately known as functionalism-"an attempt to understand law in terms of its factual context and economic and social conse­ quences."74 Quite possibly, the major contribution of the Realists was to undermine Langdell' s idea that the law was an exact science based on objective, black-letter rules. 75 Harkening back to Pound's distinction be­ tween law in books and law in action, the Realists sought to determine what the law actually does to and for people.76 As a result, they saw law not simply as an end in and of itself but as a means to various ends.77 The Realists featured two distinctive methodological approaches. The first approach was debunking78-a method that subjected questiona­ ble judicial opinions to logical analysis in order to expose their inconsis­ tencies, unsubstantiated premises, and tendency to "pass off contingent judgments as inexorable."79 Debunking encompassed two methods of attack: rule skepticism and fact skepticism. Rule skeptics argued that case decisions do not necessarily flow from general legal propositions­ that logic did not govern judicial thought processes.80 Other features

72 See, e.g., LAURA KALMAN, LEGAL REALISM AT YALE, 1927-1960, at 67-97 (1986). 73 Patrick Ewick, Robert A. Kagan & Austin Sarat, Legacies of Legal Realism: Social Science, Social Policy, and the Law, in SOCIAL SCIENCE, SOCIAL Poucv, AND THE LAW I, 30 n.3 (Patrick Ewick, Robert A. Kagan & Austin Sarat eds., 1999). 74 KALMAN, supra note 72, at 3. 75 STEVENS, supra note 13, at 156. 76 Karl N. Llewellyn, Some Realism About Realism: Responding to Dean Pound, 44 HARV. L. REV. 1222, 1222-24 (1931). 77 Id. 7 8 Later, the Critical Legal Studies scholars revived debunking as deconstruction. G. Edward White, From Realism to Critical Legal Studies: A Truncated Intellectual History, 40 Sw. L.J. 819, 821-22 (1986). Debunking is best exemplified by the works of realist Wesley Hohfeld and Karl Llewellyn. See, e.g., Wesley Hohfeld, Some Fundamental Legal Concep­ tions as Applied to Judicial Reasoning, 23 YALE L.J. 16 (1913) (applying the debunking tech­ nique to trusts and other equitable interests); Llewellyn, supra note 76, at 1238-39. 79 White, supra note 78, at 821-22. 80 Timothy L. Smith, Formalism, Pragmatism, and Nihilism in Legal Thought 48-49 (1995) (unpublished Ph.D. dissertation, The Johns Hopkins University) (on file with Harvard Law Library). For more about rule skepticism, see RUMBLE, supra note 69, at 48-68. 2008] TOWARD A CRITICAL RACE REALISM 693

also factored into the equation,81 such as policy considerations.82 Fact skeptics either argued that the facts found by the judge or jury are incon­ sistent with the actual facts83 or that judges and juries react to facts unpredictably. 84 The Realists' second methodological approach was empirical social science. 85 Although they were not alone in their attempts to integrate social science and law,86 the empirical exploits of Realists such as Charles E. Clark,87 William 0. Douglas,88 and Underhill Moore89 at Yale and Walter Wheeler Cook and colleagues at Johns Hopkins90 set them apart from other sociological, jurisprudential scholars. Realists' efforts to integrate law with the social sciences ultimately failed for a number of reasons: Realists did not know how non-legal materials should aid law students.91 Realists asked the wrong questions of social science and ex­ pected too much from the answers.92 Furthermore, social science was ultimately less helpful to legal scholars than anticipated.93 Two post­ Realist law professors, Harold Lasswell and Myres McDougal, argued that a lack of methodological sophistication in integrative efforts resulted in the Realists' failure. 94 Nonetheless, the Realists made a significant contribution toward integrating social science and the law and toward

81 Smith, supra note 80, at 48-49. 82 Id. at 50, 54; Bruce Evans Pencek, The Political Theory of Legal Realism I (Jan. 1988) (unpublished Ph.D. dissertation, Cornell University) (on file with Olin Library, Cornell University). Before the Realists, Justice Oliver Wendell Holmes noted that "[t)he felt necessi­ ties of time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be gov­ erned." HoLMES, supra note 44, at I. 83 RUMBLE, supra note 69, at 109-10. 84 Id. at 111. 85 White, supra note 78, at 823. 86 See, e.g., STEVENS, supra note 13, at 159. In 1937, the University of Chicago Law School developed an optional four-year curriculum. Part of the curriculum was reorganized to explore law's social workings. A half-year course called Law and Economic Organization "dealt with the distribution of income and the business cycle, economic theory, statistics, legal aspects of competition, control devises, and bankruptcy and reorganization." Id. 87 See JOHN HENRY SCHLEGEL, AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCI- ENCE 81-J !4 (1995). 88 Id. 89 See id. at 115-46. 90 See id. at 147-210. 91 KALMAN, supra note 72, at 73. 92 Id. 93 See Brainerd Currie, The Materials of Law Study, Part Ill, 8 J. LEGAL Eouc. 1, 29 (1951). 94 Harold D. Lasswell & Myres S. McDougal, Legal Education and Public Policy: Pro­ fessional Training in the Public Interest, 52 YALE L.J. 203, 204-05 (1943). 694 CORNELL JOURNAL OF LAw AND PUBLIC POLICY [Vol. 17:683 using the law in practical ways. Ultimately, they provided an early inte­ gration of law, social science, and public policy.95 Most of the canonical Realists, like adherents of other progressive reform movements, avoided the hot racial issues of their day.96 How­ ever, they did tackle race issues in two ways. First, a few realist thinkers directly addressed the race question. Most notably, Karl Llewellyn,97 Morris Cohen,98 and Robert Hale99 attempted to create a "Realist critique of American race relations." 100 Moreover, Llewellyn actively supported the NAACP during the 1920s and 1930s and was a self-proclaimed op­ ponent of racial segregation. 101 The NAACP Board of Directors even asked him, at one point, to lead their Legal Committee. 102 Second, Charles Hamilton Houston, the architect of the NAACP's strategy to end school segregation, was certainly a Realist. He provided a model for how to employ social science to effectuate change in laws bearing on racial equality. 103 He also articulated a model for how to change racial policy and how both an academic and a practitioner could employ those means. 104 As such, Houston embodied both Realist philos­ ophy and practice.

95 Id.; White, supra note 78, at 823. The Realists' involvement in the New Deal Era administration highlights their efforts to advance certain public policies. See HULL, supra note 65, at 177,238,239,338 (1997); KALMAN, supra note 72, at 60, 122, 130-36, 145, 148, 154, 159,201,230; RONEN SHAMIR, MANAGING LEGAL UNCERTAINTY: ELITE LAWYERS IN THE NEW DEAL 131-57 (1995); SPENCER WEBER WALLER, THURMAN ARNOLD: A BIOGRAPHY 54-59, 79, 87, 89 (2005). 96 ROBERT L. ALLEN, RELUCTANT REFORMERS: RACISM AND SOCIAL REFORM MOVE­ MENTS IN THE UNITED STATES 85 (1974); Roger A. Fairfax, Wielding the Double-edged Sword: Charles Hamilton Houston and Judicial Activism in the Age of Legal Realism, 14 HARV. BLACKLETTER L.J. 17, 34 (1998); Christopher Bracey, Note, Legal Realism and the Race Question: Some Realism About Realism on Race Relations, 108 HARV. L. REv. 1607, 1619 (1995). 97 See Karl N. Llewellyn, Group Prejudice and Social Education, in CIVILIZATION AND GROUP RELATIONSHIPS 11 (R. M. Maciver ed., I945). 98 See Felix S. Cohen, The Vocabulary of Prejudice, FELLOWSHIP (1953), reprinted in THE LEGAL CONSCIENCE: SELECTED PAPERS OF FELIX S. CoHEN 429 (Lucy Kramer Cohen ed., 1970); see also Felix S. Cohen, Field Theory and Judicial Logic, 59 YALE L.J. 238 (1950); Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 CoLUM. L. REV. 809 (1935). 99 See Robert L. Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38 PoL. SCI. Q. 470 (1923); Robert L. Hale, Force and the State: A Comparison of "Political" and "Economic" Compulsion, 35 CoLUM. L. REV. 149 (1935); Robert L. Hale, Rights Under the Fourteenth and Fifteenth Amendments Against Injuries Inflicted by Private Individuals, 6 LAW. GUILD REV. 627 (1947). 100 Bracey, supra note 96, at 1619. IOI TWINING, supra note 43, at 124. 102 HARVARD SJTKOFF, A NEW DEAL FOR BLACKS 221 (1978). 103 JoHN P. JACKSON, JR., SOCIAL SCIENTISTS FOR SOCIAL JUSTICE: MAKING THE CASE AGAINST SEGREGATION 80-82 (2001). 104 See id. 2008] TowARD A CRITICAL RACE REALISM 695

While attending Harvard Law School, Houston was a student of Realists such as Roscoe Pound and Felix Frankfurter. 105 In fact, Frank­ furter was Houston's J.S.D. advisor. 106 Not surprisingly, Houston was well aware of Sociological Jurisprudence and Legal Realism. Houston's jurisprudence made Howard University, like Columbia and Yale, a center of Realist thought and action. 107 Houston believed that a lawyer was "either a social engineer or ... a parasite on society."108 He defined a social engineer as a "highly skilled, perceptive, sensitive lawyer" who understands the United States Constitution and knows how to employ it to solve local problems and to better underprivileged citizens' condi­ tions.109 As noted by Genna Rae McNeil, between 1929 and 1948, Hous­ ton further refined his conception of a social engineer. 110 This concept entailed five responsibilities for black lawyers. First, black lawyers had to be "prepared to anticipate, guide and interpret group advancement." 111 Second, they had to be the "mouthpiece of the weak and a sentinel guard­ ing against wrong." 112 Third, they had to ensure that "the course of change is ... orderly with a minimum of human loss and suffering," and when possible, they had to "guide ... antagonistic and group forces into channels where they w[ould] not clash."113 Fourth, black lawyers had to "use ... the law as an instrument available to [the] minority unable to adopt direct action to achieve its place in the community and nation." 114 Fifth, they had to engage in "a carefully planned [program] to secure decisions, rulings and public opinion on ... broad principle[s while] arousing and strengthening the local will to struggle." 115 Dating as far back as the 1947 Supreme Court cases Hurd v. Hodge, 116 Urciolo v. Hodge, 117 and Shelley v. Kraemer, 118 Houston and his colleagues employed sociological and economic research in an effort to advance their cases. 119 They created a viable litigation strategy out of

105 Id.; McNEIL, supra note 3, at 53. For information about how Realists like Pound and Frankfurter trained a number of civil rights lawyers, see Michael J. Klarman, Civil Rights Litigation and Social Refonn, 115 Yale L.J. Pocket Part 16 (2005), http://yalelawjoumal.org/ images/pdfs/22.pdf. See also Kenneth W. Mack, The Myth of Brown?, 115 Yale L.J. Pocket Part 12 (2005), http://yalelawjoumal.org/images/pdfs/21.pdf. 106 McNEIL, supra note 3, at 53. 107 TusHNET, supra note 2, at 118. 108 McNEIL, supra note 3, at 84. 109 Id. I 10 Id. at 216. 111 Id.at217. 112 Id. 113 Id. 114 Id. 115 Id. 116 334 U.S. 24 (1948). 117 68 S. Ct. 457 (1948). 118 334 U.S. 1 (1948). 119 JACKSON, supra note 103, at 80-81; KLuGER, supra note 2, at 248, 253-54. 696 CORNELL JOURNAL OF LAw AND PUBLIC POLICY [Vol. 17:683 an intellectual movement, which "manifested itself most famously in Brown [v. Board of Education]."120 In fact, one of the best ways to un­ derstand the Realists and their contribution to Brown is to see them as advocates of a policy-oriented or -aware jurisprudence. As such, their jurisprudential thought was informed by developments in the behavioral and social sciences. 121

2. The Law Policy Science Movement

Lasswell and McDougal advanced two elements of Realism-social science and law as well as law and public policy. McDougal was a Yale Law School graduate during the early 193Os and became a faculty mem­ ber in 1934. 122 While visiting at the University of Chicago, he met politi­ cal scientist Harold Lasswell. 123 The two became friends, and Lasswell ultimately joined the Yale faculty as a professor of law and social sci­ ence. 124 As part of the general Realist milieu at Y,ale, McDougal and Lasswell viewed Realism as a useful tool to debunk the law's "old myths and lame theory," but the two doubted that Realism offered much to take its place. 125 They noted, in fact: [T]here is a limit beyond which the laborious demonstra­ tion of equivalencies in the language of the courts cannot go: eventually the critic must offer constructive guidance as to what and how courts and other decision-makers should decide the whole range of problems importantly affecting public order. 126 Thus, they set out to develop an affirmative jurisprudence that would both incorporate law and the social sciences and embody "demo­ cratic values." 127 Together, they attempted to synthesize Legal Realism and empirical legal scholarship, which would be capable of formulating,

120 J. Clay Smith, Jr. & E. Desmond Hogan, Remembered Hero, Forgotten Contribution: Charles Hamilton Houston, Legal Realism, and Labor Law, 14 HARV. BLACKLETIER L.J. 1, 3 (1998). 121 Robert J. Cottrol, Justice Advanced: Comments on William Nelson's Brown v. Board of Education and the Jurisprudence of Legal Realism, 48 ST. LoUis U. L.J. 839, 843 (2004). 122 KALMAN, supra note 72, at 176. 123 JAMES E. HERGERT, AMERICAN JURISPRUDENCE, 1870-1970: A HISTORY 220 (1990). 124 Id. at 220. 125 Id.; Harold D. Lasswell & Myres S. McDougal, Jurisprudence in a Policy-Oriented Perspective, 19 U. FLA. L. REv. 486,495 (1966) (noting the Realists' "vivid assault" on tradi­ tional jurisprudence); Myres S. McDougal et al., Theories About International Law: Prologue to a Configurative Jurisprudence, 8 VA. J. OF lNT'L L. 188, 261 (1968) (noting Realism's failure to provide a "positive systematic theory"). 126 Harold D. Lasswell & Myres S. McDougal, Criteria for a Theory About Law, 44 S. CAL. L. REv. 362, 373 (1971). 127 Lasswell & McDougal, supra note 125, at 495; see also KALMAN, supra note 72, at 177. 2008] TowARD A CRITICAL RACE REALISM 697 promoting, and critiquing policy. 128 McDougal valued the social sciences but felt that such scholarship in and of itself could not replace classical legal thought. 129 Lasswell viewed himself as a "policy scientist" and evaluated the law using all of the intellectual techniques and skills of a political scientist. 130 Ultimately, McDougal and Lasswell developed the Law, Science, and Policy movement. 131 By 1943, they established part of the framework for Law, Science, and Policy in an article calling for the radical reform of legal educa­ tion.132 Their main objective was a curricular reform movement within law schools, or more precisely, "elite" law schools. 133 They contended that a law school's role was to train policymakers.134 To these thinkers, the Law, Science, and Policy framework was concerned with authorita­ tive decisionmaking. 135 As such, policy scientists were concerned with how those with political authority-e.g., legislatures, courts, administra­ tive agencies, and city councils-made decisions. 136 Another aspect of Law, Science, and Policy was value analysis, which consisted of analyz­ ing the values held by participants in the decisional process. 137 Law, Sci­ ence, and Policy assumed that anyone applying its system of analysis was a rational actor who attempted to maximize value. 138 With such an ambitious agenda, James Hergert and Robert Stevens, respectively, saw Law, Science, and Policy as "bring[ing] realism to a sort of comple­ tion"139 and as a "remarkable, albeit ultimately unsuccessful, synthe­ sis."140 Numerous factors may have led to the jettison of the Law, Science, and Policy movement. The policy-science jargon, the formalism of the approach, or the dated social science it employed may all have contributed to Law, Science, and Policy's demise. 141 Additionally, the approach may have been "too elitist, too expensive, ... too academic," and ultimately too impractical for most American law schools. 142

128 HERGERT, supra note 123, at 220-21. 129 Id. at 220. 130 Id. 131 STEVENS, supra note 13, at 265. 132 Lasswell & McDougal, supra note 94, at 203. 133 KALMAN, supra note 72, at 184. 134 STEVENS, supra note 13, at 265. 135 HERGERT, supra note 123, at 221. 136 Id. 137 Id. at 222. 138 Id. at 223. 139 Id. at 224. 140 STEVENS, supra note 13, at 265. 141 Id. at 266. 142 Id.; see also KALMAN, supra note 72, at 187. 698 CORNELL JouRNAL OF LAW AND PUBLIC POLICY [Vol. 17:683

3. Yale's Divisional Studies Program

In the wake of the Realist and Law, Science, and Policy movements, Yale Law School embarked on a curricular reform effort. 143 Yale's 1946 Curriculum Committee Report echoed the sentiments of Laswell and McDougal. 144 The report's authors specifically noted that legal education should be "thoroughly" informed by the social sciences and that law stu­ dents should be taught by social scientists. 145 They stated that, as part of the goal of the new curriculum, a legal education should equip law stu­ dents "to analyze and assess the politics, economic and social, as well as the historical and doctrinal, factors in legal policy." 146 Furthermore, they needed "a critical and scientific understanding of the methods of study, analysis, and investigation which are used ... in the various sciences ... included in the scope of legal studies." 147 The report's final, general rec­ ommendation called for the institution of faculty seminars for intellectual cross­ fertilization; the restoration of the requirement that sec­ ond- and third-year students take small seminars; per­ haps in conjunction with the work of the Yale Law Journal; the funding of postdoctoral research at the law school by noted scholars from other disciplines; the re­ cruitment of outside lecturers; and the integration of psy­ chiatry into the study of law .148 The law school took no affirmative steps on this report, but the school re-examined its curriculum in 1955. 149 This time, the report's goals focused on three issues: First, it sought to prepare its students for legal practice by teaching them how to specialize once in practice. Sec­ ond, it sought to improve students' critical thinking and writing skills by placing them in small groups focused on these areas. Third, and more germane to this Note, the program sought to teach students how to inte­ grate law and social science. 15O The law school finally implemented the

143 Brannon P. Denning, The Yale Law School Divisional Studies Program, 1954-1964: An Experiment in Legal Education, 52 J. LEGAL EDuc. 365, 366-69 (2002). 144 Id. at 369. 145 Id. 146 Id. at 369-70 (quoting REPORT OF THE COMMITTEE ON CURRICULUM AND PERSONNEL 1-2 (May 6, 1946) (on file with Sterling Memorial Library, Yale University). 147 Id. at 370 (quoting REPORT OF THE COMMITTEE ON CURRICULUM AND PERSONNEL 1-2 (May 6, 1946) (on file with Sterling Memorial Library, Yale University). 148 Id. 149 Id. at 371-73. 1so Id. 2008) TowARD A CRITICAL RACE REALISM 699

program during the 1956-57 academic year. 151 By the early 1960s, how­ ever, the Divisional Studies Program had petered out. 152

D. THE LAW "AND" MovEMENT AND ITs PROGENY

Just as Columbia and Yale law schools blazed new trails in Ameri­ can jurisprudence during the first half of the twentieth century, so would the University of Chicago and University of Wisconsin law schools in the latter half. The Law and Economics movement took root at Chicago and the Law and Society movement and its progeny, Critical Legal Stud­ ies and Critical Race Theory, took shape at Wisconsin.

1. Law and Economics Movement

The Law and Economics movement, premised on the notion that the law should be economically efficient, 153 has gained considerable mo­ mentum in recent decades. 154 Its roots trace back to the 1700' s with the work of David Hume, Adam Ferguson, Adam Smith, and Jeremy Ben­ tham. 155 Within American jurisprudence, the movement took hold at the University of Chicago. 156 In 1937, the Chicago Law School developed an optional four-year curriculum, part of which was reorganized to ex­ plore law's social workings. 157 A half-year course called Law and Eco­ nomic Organization focused on the "distribution of income and the business cycle, economic theory, statistics, legal aspects of competition, control devices, and bankruptcy and reorganization." 158 Two years later, Chicago Law School appointed the first economics professor, Henry Simmons, to the law faculty. 159 The Law and Economics movement truly came to light with Ronald Coase's research initiative at the London School of Economics, which

151 /d.at377. 152 Id. at 390-95. 153 Charles K. Rowley, An Intellectual History of Law and Economics, in THE ORIGINS OF LAW AND EcoNOMics: EssAYS BY THE FOUNDING FATHERS 12 (Francesco Parisi & Charles K. Rowley eds., 2005) [hereinafter FOUNDING FATHERS]. 154 Michael Paradis, Just Reasonable: Can Linguistic Analysis Help Us Know What It Is to Be Reasonable?, 47 JuRIMETRICS J. 169, 173 (2007) ("Law and economics has been partic­ ularly popular in the United States as a form of positivism that views the judicial task as one of utility maximization."). 155 Rowley, supra note 153, at 3-8. 156 Id. at 12. 157 STEVENS, supra note 13, at 159. 158 Id. 159 Rowley, supra note 153, at 12. In 1949, Aaron Director was appointed as the second economics professor to a law school's faculty. See George L. Priest, The Rise of Law and Economics: A Memoir of the Early Years, in FouNDING FATHERS, supra note 153, at 352. 700 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 17:683 gave rise to his 1937 essay, The Nature of the Firm. 160 In 1964, Coase joined the Chicago Law School's faculty, where he remained until 1982. During his tenure at Chicago, he served as editor and then co-editor of The Journal of Law and Economics, which he used to advance the disci­ pline.161 The writings of Coase162 and Guido Calabresi163 in the 1960s further catapulted the Law and Economics movement and spread its methodological approach to torts, property, and contracts.164 The 1970s witnessed an ever-forward push of the movement with Calabresi's The Cost ofAccidents165 and Richard Posner's Economic Analysis of Law. 166 Through the latter half of the twentieth century and continuing into this century, the Law and Economics movement has flourished.

2. Law and Society Movement

In 1964, Harry Ball, coordinator of the University of Wisconsin's Sociology and Law Program, took the lead in advancing what would come to be known as the Law and Society movement. During the Amer­ ican Sociological Association's annual meeting, he invited all attendees who were interested in the intersection of sociology and law to a break­ fast. Approximately ninety individuals attended the breakfast. 167 From that effort, sociologists and law professors developed the Law and Soci­ ety Association as a forum to promote the rigorous interdisciplinary study of law. 168 Moreover, the development of the Law and Society As­ sociation seems to have had as much to do with legitimizing socio-legal studies as it had to do with efforts toward an interdisciplinary exchange

160 Ronald Coase, The Nature of the Firm, 4 EcoNOMICA 386 (1937), reprinted in THE NATURE OF THE FIRM: ORIGINS, EVOLUTION, AND DEVELOPMENT 18 (Oliver E. Williamson & Sidney G. Winter eds., 1991); see also Rowley, supra note 153, at 14. 161 Rowley, supra note 153, at 17. 162 Ronald Coase, The Problem of Social Cost, 3 J.L. & EcoN. 1 (1960). 163 Guido Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 YALE L.J. 499 (1961). 164 Francesco Parisi, Methodological Debates in Law and Economics: The Changing Contours of the Discipline, in FouNDING FATHERS, supra note 153, at 34. 165 Gumo CALABRESI, THE COSTS OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS (1970) (applying economic analysis to the accident law system). 166 RICHARD PosNER, EcoNOMIC ANALYSIS OF LAW (1973) (arguing that the central fea­ ture of the common law is that its rules are designed to achieve efficiency). 167 Felice J. Levine, Goose Bumps and "The Search for Signs ofIntelligent Life" in Soci­ olegal Studies: After Twenty-five Years, 24 LAW & Soc'Y REv. 7, 10 (1990). 168 See White, supra note 78, at 830. See generally David M. Trubek, Back to the Future: The Short, Happy Life of the Law and Society Movement, 18 FLA. ST. U. L. Rev. 5-7 (1990). Early in law and society's development, the dominant force was comprised of sociologists. See Levine, supra note 167, at 11. However, law professors interested in socio-legal studies ulti­ mately brought their perspectives, in larger numbers, to bear on this growing discipline. See Trubek, supra, at 14-15. 2008] TowARD A CRITICAL RACE REALISM 701 of ideas. 169 Despite this interdisciplinary perspective, the locus of Law and Society scholarship is not legal scholarship and law schools. Felice Levine, first national President of the Law and Society Association, situ­ ates the locus at the interdisciplinary intersection of the social sciences, "including but not privileging our law-trained colleagues attracted to em­ pirical inquiry and law-related matters." 170 Though initially the Law and Society movement never saw itself as political, its goals reflected the ideas of "people committed to moderate reform" and resonated among liberal lawyers. 171 Thus, many who came to the Law and Society movement had committed to governmental inter­ vention in the economy, moderate wealth redistribution, and governmen­ tal intervention to ensure social equality for the disadvantaged, racial minorities, the accused and mentally ill, as well as women. 172 Not only were most law and society founders liberals, they were also "legal­ ists." 173 As legalists, they had faith in the law as a tool for progressive social change. They believed in the liberalism of legal institutions and believed that through legal means most of the flaws in American society would diminish.174 Generally, the Law and Society field is the study of law in its social context. 175 More specifically, the Law and Society movement's goal is to employ a social scientific study of the law .176 However, if one is to study law as a social science, one must define law as more than a mere set of rules and principles. Thus, Law and Society sought to define law "as a social institution, as interacting behaviors, as ritual and symbol, as a reflection of interest group politics, [and] as a form of behavior modifi­ cation."177 David Trubek describes five types of law and society ac­ tors.178 The true scientist was a scientist who wanted to study the law. The social problem solver was a scientist with a social mission to partici­ pate in social reform. The technician-e.g., statisticians and survey re­ searchers-simply provided technical skills to an expanding field of legal studies. The imperial jurist believed social science would supple­ ment legal doctrine and help the law understand its own powers and limi­ tations. Finally, the skeptical pragmatist did not believe social science

169 Frank Munger, Mapping Law and Society, in CROSSING BOUNDARIES: TRADITIONS AND TRANSFORMATIONS IN LAW AND SOCIETY RESEARCH 26, 28 (Austin Sarat ed., 1998). I 70 Levine, supra note 167, at 9. I 71 Trubek, supra note 168, at 8. 172 See id. at 8. 173 See id. 174 See id. at 9. 175 Munger, supra note 169, at 26. 176 See Lawrence M. Friedman, The Law and Society Movement, 38 STAN. L. REv. 763, 766 (1986). I 77 Trubek, supra note 168, at 6. 178 See id. at 24-27. 702 CORNELL JouRNAL OF LAW AND PUBLIC POLICY [Vol. 17:683 would replace legal studies but viewed it as a useful way to understand the legal process. 179 Conceptually, Trubek describes five elements that comprise the Law and Society movement. 180 The doctrine of systemicity argues that society is a system that contains interacting elements comprised of indi­ vidual and group behavior. The doctrine of objectivism argues that the objective knowledge of law governs the legal system's operation, its con­ stituent parts, and that its relation to other systems is realized through the scientific method. The doctrine of disengagement argues that in order to develop such objective knowledge, there needs to be scholarly institu­ tions that disengage from the production of legal doctrine, education of legal professionals, and goals of any societal group. The doctrine of univocality argues that the law contains a set of normative standards available for critique and reconstruction. Finally, the doctrine of pro­ gressivism argues for liberal reform. 181

a. Critical Legal Studies Critical Legal Studies emerged as one of the leading jurisprudential schools in the second half of the 1970s through the 1980s. 182 In 1976, Duncan Kennedy and David Trubek met and discerned that there were a number of legal scholars around the country engaged in similar scholar­ ship. They decided to convene these individuals, and Mark Tushnet, then Dean of the University of Wisconsin Law School, organized an aca­ demic conference. 183 Many of these early Critical Legal Studies scholars met at Yale. 184 Of the nine organizing committee members, Duncan Kennedy, Rand Rosenblatt, and Tushnet graduated from Yale in the early 1970s. Richard Abel and Trubek taught at Yale. Roberto Unger was connected with Yale's Law and Modernization Program, and after gradu­ ating from Yale, Thomas Heller was a fellow in the program. Only Mor­ ton Horowitz and Stewart Macaulay did not have Yale ties. 185 Some of Critical Legal Studies founders were formerly active in the Law and Society movement. 186 However, they ultimately disagreed with their Law and Society colleagues on key issues. One of the factors that cleaved Critical Legal Studies from the Law and Society movement was

179 See id. IBO See id. at 28. 181 See id. 182 Laura Kalman, The Dark Ages, in YALE LAW ScttooL, supra note 12, at 203. 183 See Mark Tushnet, Critical Legal Studies: A Political History, l00 YALE L.J. 1515, 1523 (1991). 184 Kalman, supra note 182, at 203. 1ss Id. 186 See LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM 82 (1996) (noting David Trubek's ties to both the Law and Society movement and Critical Legal Studies). 2008] TowARD A CRITICAL RACE REALISM 703 the debate about the importance of empirical social science. In an article in the Law and Society Review, 187 David Trubek assailed empirical social science. 188 G. Edward White writes that Trubek implied two things. First, he suggested that empirical research legitimates the status quo in that it implies that research facts were objectively "there."189 Second, he argued that a scholar could not separate ideology from methodology in any type of research, including empirical research. 190 Ultimately, ac­ cording to White, Trubek argued that "io be poiitically reformist and methodologically neutral was a contradiction in terms."191 While Critical Legal Studies is a direct extension of Legal Real­ ism, 192 it is largely so through deconstruction of legal opinions and doc­ trine.193 Critical Legal Studies differs from Legal Realism in two respects, however. As noted, while Critical Legal Studies scholars had little faith in social science, the Realists endorsed social science and em­ ployed its methods. Additionally, the ethical relativism endorsed by most Critical Legal Studies scholars was different from, and more coher­ ent than, that of the Realists. 194 Thus, Critical Legal Studies has become associated with politically left-leaning law faculty 195 and is based on three propositions. First, law is indeterminate. Second, law is more ac­ curately understood by paying attention to the context in which it is made. Third, law is politics. 196 Critical Legal Studies ultimately lost

I 87 David Trubek, Complexity and Contradiction in the Legal Order: Ba/bus and the Challenge of Critical Social Thought About Law, 11 LAW & Soc'y REv. 529 (1977). 188 See White, supra note 78, at 834. 189 Id. 190 Id. 191 Id. l92 See Kalman, supra note 174, at 203; see also John Henry Schlegel, Notes Towards an Intimate, Opinionated, and Affectionate History of the Conference on Critical Legal Studies, 36 STAN. L. REv. 391 (1984); Trubek, supra note 168, at 540-45; Note, 'Round and 'Round the Bramble Bush: From Legal Realism to Critical Legal Scholarship, 95 HARV. L. REV. 1669 (1982). 193 See White, supra note 78, at 821. Critical Legal Scholars describe this methodological technique as "trashing." In this approach, they (I) take legal arguments seriously in their own terms, (2) discover that the arguments are "foolish," and (3) look for some order in the "inter­ nally contradictory, incoherent chaos [they have] exposed." Mark G. Gelman, Trashing, 36 STAN. L. REv. 293, 293 (1984). Thus, Critical Legal Scholars are seen as having set out to wage a "full frontal assault" on modem jurisprudence. See Allan C. Hutchison & Patrick J. Monahan, Law, Politics, and the Critical Legal Scholars: The Unfolding Drama of American Legal Thought, 36 STAN. L. REv. 199, 199 (1984). 194 Richard Nunan, Critical Legal Parracide, or: What's So Bad About Warmed-Over Legal Realism?, in RADICAL CRmQUEs OF THE LAW 21, 33 (Stephen M. Griffin & Robert C.L. Moffat eds., 1997). 195 See Tushnet, supra note 183, at 1516. 196 See id. at 1518. 704 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 17:683 much of its steam from cries that the movement was comprised of nihil­ ists197 and critiques from women198 and racial minorities. 199

b. Critical Race Theory Just as Realism was the precursor to the Law and Society move­ ment, itself a precursor to Critical Legal Studies, Critical Legal Studies was a precursor to Critical Race Theory.200 However, before one can understand Critical Legal Study's influence on the development of Criti­ cal Race Theory, it is important to understand the role of the seminal figure to its development. Derrick Bell is the forerunner of Critical Race Theory in two ways. 201 Specifically, his departure from Harvard Law School's faculty in 1981 prompted Harvard law students to wrangle with the Harvard's dean over the marginalization of race in the curriculum.202 More broadly, his resignation created an issue around which legal schol­ ars could rally and develop intellectual relationships that grew over the course of a number of subsequent meetings.203 Bell also helped establish a scholarly agenda that placed race squarely at the center of intellectual legal dialogue.204 Bell's path-break­ ing book, Race, Racism, and American Law,2°5 best exemplifies his im­ pact. The aim of the book was to illustrate how laws help to systematically disempower Blacks.206 Additionally, Bell's litmus test for the efficacy of civil rights laws was how well they contested the condi-

197 See Paul D. Carrington, Of Law and the River, 34 J. LEGAL EDuc. 222, 227 (1984) (warning that persons espousing the notion that principle is not but cosmetic have a substantial ethical problem as law professors). 198 See Robin West, Deconstructing the CLS-Fem Split, 2 Wis. WoMEN's L.J. 85 (1986) (complaining that female law professors are relatively disempowered within the Conference on Critical Legal Studies). 199 See Richard Delgado, The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?, 22 HARV. C.R.-C.L. L. REV. 301 (1987) (observing that CLS had failed to place racial questions on its agenda and suggesting that there is a fundamental difference between what CLS proposes and what minorities seek in a legal theory). 200 See Bernie D. Jones, Critical Race Theory: New Strategies for Civil Rights in the New Millennium?, 18 HARV. BLACKLETIER L.J. I (2002) [hereinafter Jones, New Strategies]; Bernie Donna-Marie Jones, Critical Race Theory: Protesting Against Formalism in the Law, 1969-1999 (May 2002) (unpublished Ph.D. dissertation, University of Virginia) (on file with Alderman Library, University of Virginia) [hereinafter Jones, Protesting Against Formalism]. 201 See Jones, New Strategies, supra note 200, at 32-46; Jones, Protesting Against For­ malism, supra note 200, at 115-59. 202 Kimberle Williams Crenshaw, The First Decade: Critical Reflections, or "A Foot in the Closing Door," in CROSSROADS, DIRECTIONS, AND A NEW CRITICAL RACE THEORY IO (Francisco Valdes et al. eds., 2002). 203 Id. Bell departed Harvard to assume the deanship at the University of Oregon's law school. See Derrick Bell Biography, http://www.answers.com/topic/derrick-bell (last visited Nov. 19, 2007). 204 Crenshaw, supra note 202. 205 DERRICK A. BELL, JR., RACE, RAc,sM AND AMERICAN LAW (2d ed. 1980). 206 See id. at xxiii. 2008] TOWARD A CRITICAL RACE REALISM 705 tions of racial domination. 207 As Crenshaw suggests, Bell was a realist in that he assessed legal rules in terms of how they function within a racist society.208 Furthermore, Bell was a Crit-a Critical Legal Studies adherent-in that "he understood the indeterminate and frequently con­ tradictory character of the law."209 The Harvard dean's refusal to allow a race and law course into the curriculum prompted a group of students to organize an "Alternative Course." Students of color initiated this class. They raised money and brought in academics of color to teach the course from chapters in Bell's book. Among the scholars who participated were Charles Lawrence, Richard Delgado, Linda Greene, Denise Carty-Bennia, and Neil Go­ tanda. Many of these individuals became central figures in Critical Race Theory. Students Mari Matsuda and Kimberle Crenshaw played signifi­ cant roles as did Harvard's Critical Legal Studies faculty. The course served as an important precursor to Critical Race Theory in that it brought together a number of legal scholars and students to share ideas on race and law. 210 Critical Legal Studies had a more direct impact as well. 211 Gener­ ally, the cleavage of Critical Race Theory from Critical Legal Studies may have been, as described by Richard Delgado, an inevitable result of the different worldviews of whites and people of color. 212 For example, many whites do not readily perceive racism. 213 People of color, on the other hand, see and are on the receiving end of racism daily. 214 This has two effects: First, "even the most sympathetic, left-leaning whites" have to constantly be re-educated about racism. 215 Second, it colors each group's "legal and political theorizing," causing members of the respec­ tive groups to take different stances on issues.216 As such, whites and people of color within the Critical Legal Studies movement had funda­ mental differences in what they wanted in a legal theory. 217 A more specific history shows that the 1985 Critical Legal Studies (CLS) conference was organized by its feminist wing-the FemCrits. Women of color were called upon to discuss how they wanted to partici­ pate in the conference. Several invitees noted how they might discuss

207 Crenshaw, supra note 202, at 12. 208 Id. 209 Id. 210 Id. at 13-14. 2 I l See Richard Delgado, Critical Legal Studies and the Realities ofRace-Does the Fun- damental Contradiction Have a Corollary, 23 HARV. C.R.-C.L. L. REv. 407, 407-08 (1988). 212 See id. at 407. 2 13 See id. 2 14 See id. at 408. 21s Id. 2 16 Id. at 409. 217 Delgado, supra note 199, at 301. 706 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 17:683 race at the conference, which resulted in a racism workshop. The ques­ tion that launched the workshop was, "What is it about the whiteness of CLS that keep the people of color at bay?" Such a question was not well­ received by the "white male heavies of CLS."218 Two additional events drove people of color from the ranks of the Critical Legal Studies move­ ment. First, during a visit at Stanford, white students complained of Der­ rick Bell's approach to teaching constitutional law and arranged a series of supplemental lectures by other faculty. 219 Given that Stanford was seen as a CLS stronghold, people of color within CLS were gravely con­ cerned. Second, there was a racial stereotype about Mexicans in the CLS newsletter The Lizard.220 Finally, at the 1987 CLS conference, attendees hosted a panel enti­ tled "The Minority Critique of CLS Scholarship (and Silence) on Race." The panelists focused their comments on the "racially specific culture of CLS, the critique of rights, and on the silencing of voice[s] of color in the legal academy."221 In 1988, Kimberle Crenshaw, Stephanie Phillips, and Richard Delgado began discussions on how to convene individuals inter­ ested in the intersection of CLS and race. At the time, Crenshaw was a visiting fellow, Phillips was a Hastie Fellow, and Delgado was a profes­ sor. Together, they approached David Trubek, director of the Wiscon­ sin's Institute of Legal Studies, for funds to support a workshop initially called "New Developments in Race and Legal Theory"222 but ultimately changed to "Critical Race Theory."223 On July 8, 1989, twenty-four Critical Race Theory Workshop par­ ticipants gathered in Madison, Wisconsin.224 They defined Critical Race Theory as "a race-based, systematic critique of legal reasoning and legal institutions."225 However, they created an area of jurisprudence that was more than just theory. Critical Race Theory, in addition to being "criti­ cal" is in part an activist agenda as it both tries to understand the plight of racial minorities and change it.226 Delgado and Jean Stefancic indicate that Critical Race Theory has three basic tenets: first, racism is normal in

218 Crenshaw, supra note 202, at 16. 219 Id. 220 Id. at 16-17. 221 Id. at 18. 222 Id. 223 Id. at 19 ("We would signify the specific political and intellectual location of the project through "critical," the substantive focus through "race," and the desire to develop a coherent account of race and law through the term "theory."). 224 Id. at 30 n.18. Conference attendees consisted of: Anita Allen, Taunya Banks, Derrick Bell, Kevin Brown, Paulette Caldwell, John Calmore, Kimberle Crenshaw, Harlon Dalton, Richard Delgado, Neil Gotanda, Linda Greene, Trina Grillo, Isabelle Gunning, Angela Harris, Mari Matsuda, Teresa Miller, Philip T. Nash, Elizabeth Patterson, Stephanie Phillips, Benita Ramsey, Robert Suggs, Kendall Thomas, and Patricia Williams. 225 DELGADO & STEFANCIC, supra note 4, at xix. 226 Id. at 3. 2008] TowARD A CRITICAL RACE REALISM 707 the way society operates and the common experience of people of color in the U.S. Second, white-over-color dominance serves important psychic and physical purposes,227 making racism difficult to remedy. Third, the concept of race is a social construction, a product of people's thoughts and relations.228 Despite this seeming coherence, however, Critical Race Theory is not merely a school of thought "with an over­ arching theoretical formulation."229 It is more accurately a site of resis­ tance and debate. 230 Hackney argues that Critical Race Theory is better conceptualized as a project.231 Duncan Kennedy, as cited by Hackney, notes that "[a] project is a continuous goal-oriented practical activity based on an analysis of some kind ... but the goals and the analysis are not necessarily internally coherent or consistent over time."232

II. CRITICAL RACE REALISM: A DEFINITION AND DEVELOPMENT(S)

Several intellectual movements, schools of thought, and individuals have contributed in various ways to what can be defined as Critical Race Realism. Here, Critical Race Realism consists of (1) a deconstructive element, which is a systematic, race-based evaluation and critique of the law and legal institutions, and (2) a constructive element, which is a ra­ cially progressive policy agenda. Both elements rely heavily on empirical social science. With this in mind, there is a long history of liberal activ­ ism that has employed social science to end the racial status quo in America. There has also been a conservative effort to shore it up. The twentieth century provides a number of instances where the legal battle over racial equality in America has been fought employing social sci­ ence. For instance, just as social science was employed to advance the aims of the Brown v. Board ofEducation233 decisions to end racial segre­ gation in schools,234 there was also a scientific effort to reverse the legal gains of those decisions.235 Charles Houston fought on the progressive side of that battle by employing social science and seeking to effectuate change in law and public policy. As such, Houston embodied and put into practice Realist

221 Id. 228 Id. at 6-8. 229 James R. Hackney Jr., Derrick Bell's Re-Sounding: W. E. B. Du Bois, Modernism, and Critical Legal Scholarship, 23 LAW & Soc. INQUIRY 141, 141 n.1 (1998). 230 Id. 231 Id. 232 DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION 6 (1997). 233 Brown v. Board of Education, 347 U.S. 483 (1954). 234 See JACKSON, supra note 103. 235 See JOHN P. JACKSON, JR., SCIENCE FOR SEGREGATION: RACE, LAW, AND THE CASE AGAINST BROWN V. BOARD OF EDUCATION (2005). 708 CORNELL JouRNAL OF LAw AND PuBuc PoucY [Vol. 17:683 philosophy. He was the exemplar of Critical Race Realism. Just as Hous­ ton and his efforts provide a template for Critical Race Realism, contem­ porary efforts and movements help situate it. Houston's work and Brown's effect was to create an increasingly interdisciplinary approach to the law. 236 Contemporary court cases dealing with race issues such as Griggs v. Duke Power Co., 237 McCleskey v. Kemp,238 and Grutter v. Bol­ linger,239 reflect such interdisciplinarity.240 In addition to this interdisci­ plinary legacy, Houston and Brown also pointed the way toward a synthesis of social science and the law directed at changing public pol­ icy. It is this legacy that I rely upon in looking at how Critical Race Realism may currently be conceptualized. In this subpart, I focus on con­ temporary efforts toward integrating social science, law, and public pol­ icy. I then square Critical Race Realism with these contemporary movements.

A. CONTIGUOUS MODELS: EMPIRICAL LEGAL STUDIES, THE NEW LEGAL REALISM PROJECT, AND BEHAVIORAL REALISM

In light of efforts by Legal Realists and the law and society move­ ment, recent efforts to integrate law and social science are afoot. A new and rigorous empiricism has found its place within legal academia. This is likely because empirical legal scholarship has two substantial benefits: first, it arguably leads to objective knowledge, unfettered by personal prejudices;241 second, it has incredible potential to affect public pol­ icy. 242 As such, it is no surprise that empirical legal scholarship has taken firm root within legal academia in recent years. A number of indicators suggest this: the conference theme in 2006 for the annual meeting of the Association of American Law Schools, for instance, was "Empirical Scholarship: What Should We Study and How Should We Study It?"243 Additionally, empirical legal scholarship is the "discernible emerging trend" in hires among law faculty, and law schools have hired an increas-

236 Michael Heise, Brown v. Board of Education, Footnote 11, and Multidisciplinarity, 90 CORNELL L. REV. 279, 280, 307 (2005). 237 Griggs v. Duke Power Co., 401 U.S. 424 (1971). 238 McClesky v. Kemp, 499 U.S. 467 (1991). 239 Grutter v. Bollinger, 539 U.S. 306 (2003). 240 Heise, supra note 236, at 312-14. 24 1 Gregory Mitchell, Empirical Legal Scholarship as Scientific Dialogue, 83 N.C. L. REv. 167, 180-82 (2004). 242 See Theodore Eisenberg, Why Do Empirical Legal Scholarship?, 41 SAN DIEGO L. REv. 1741, 1742-46 (2004). See also Elizabeth Warren, The Market for Data: The Changing Role ofSocial Sciences in Shaping the Law, 2002 Wis. L. REv. 1, 7 (2002) (highlighting "the growing number of corporations and lobbying groups paying to produce such data for use in lobbying legislatures and influencing public opinion"). 243 Association of American Law Schools Annual Meeting Page for 2006, http://www. aals.org/am2006/theme.html (last visited October 26, 2006). 2008] TowARD A CRITICAL RACE REALISM 709 ing number of JD/PhDs as faculty. 244 Arguably, a significant number of these dual-degree hires are trained in economics, or psychology, or soci­ ology, or political science and presumably trained in empirical methodol­ ogies. In addition to hires, recent legal academia trends suggest that law professors are increasingly interested in and producing more empirical scholarship.245 Moreover, there is a growing infrastructure for producing and pub­ lishing empirical legal scholarship. Several law schools offer courses in empirical methods to train their students.246 A number of institutions have "programs or initiatives" designed to increase the output of empiri­ cal legal scholarship.247 Washington University in St. Louis has a Work­ shop on Empirical Research in the Law.248 UCLA Law School has an Empirical Research Group.249 Wake Forest Law School has a Center for Student Empirical Studies sponsored by its law review.250 Additionally, the Institute for Legal Studies at the University of Wisconsin Law

244 Michael Heise, The Past, Present, and Future of Empirical Legal Scholarship: Judi­ cial Decision Making and the New Empiricism, 2002 U. ILL. L. REv. 819, 828 (2002). 24 5 Robert C. Ellickson, Trends in Legal Scholarship: A Statistical Study, 29 J. LEGAL Srno. 517, 527-29 (2000); Tracey E. George, An Empirical Study of Empirical Legal Scholar­ ship: The Top Law Schools, 81 IND. L.J. 141, 141 (2006) (describing empirical legal scholar­ ship as "the next big thing in legal intellectual thought"). 246 Yale offers Empirical Law and Economics, Bulletin of Yale University, http://www. yale.edu/bulletin/html/law/course.html (last visited October 26, 2006). Stanford offers the fol­ lowing courses: Bayesian Statistics and Econometrics, Empirical Analysis: Mathematical Methods, Quantitative Methods: Finance, Quantitative Methods: Statistical Inference, and Sta­ tistical Inference and Empirical Research, Stanford Law School Advanced Courses Page, http://www.law.stanford.edu/program/courses/#2nd-3rd_year_program (last visited October 26, 2006). Harvard offers Empirical Studies of Economic Transformations, Harvard Law School 2006-07 Course Catalog, http://www.Iaw.harvard.edu/academics/courses/2006-07/?id =46342845 (last visited October 26, 2006). Northwestern offers Social Science Research Methods. Northwestern Law School Policy Analysis Concentration Page, http://www.law. northwestern.edu/academics/concentrations/law _social_policy/policy.html (last visited Octo­ ber 26, 2006). Cornell offers Empirical Studies in Leading Civil Rights Issues, Cornell Law School 2006-07 Course Offerings, http://support.Iaw.cornell.edu/students/forms/Courses_by_ Category_for_Registrars_site/2006-07 _Courses_by_category.pdf (last visited Sept. 15, 2006). The University of Texas at Austin offers an empirical methods course called Social Science & Law, The University of Texas at Austin Course Description Page, http://utdirect.utexas.edu/ loreg/clap.WBX?ccyys=20072&class_unique_number=28135 (last visited November IO, 2006). 247 Eisenberg, supra note 242, at 1742. 248 Introduction Page, http://werl.wustl.edu/index.php (last visited October 26, 2006). The group consists of "legal and social science scholars that have worked to encourage and facili­ tate the proper use of empirical methods in legal studies, and of legal materials in social sci­ ence work." 24 9 Introduction Page, http://www.law.ucla.edu/home/index.asp?page=840 (last visited October 26, 2006). ERG "specializes in the design and execution of quantitative research in law and public policy, and enables the law faculty to include robust empirical analysis in their legal scholarship." 250 Home Page, http://lawreview.law.wfu.edu/issues/empirical/ (last visited October 26, 2006) (noting that the purpose of the program is to "promot[e] student involvement in the assembly and analysis of data related to the operation of legal systems and legal rules"). 710 CORNELL JOURNAL OF LAw AND PUBLIC POLICY [Vol. 17:683

School,251 The Center for the Study of Law and Society at Boalt Law School,252 and the Baldy Center at the University of Buffalo253 all sup­ port empirical and interdisciplinary scholarship. Additionally, publications beside traditional law reviews are pub­ lishing more empirical scholarship. Faculty-edited, peer-reviewed jour­ nals such as the Journal of Empirical Legal Studies, Journal of Legal Studies, Journal of Law and Economics, Law & Society Review, and Journal of Law, Economics & Organization have emerged and rank among some of the most prestigious law journals. 254 Cyberspace too has become a repository for empirical legal scholarship. The Social Science Research Network's Legal Scholarship Network, a major disseminator of scholarship, includes a section on empirical legal scholarship. 255 Addi­ tionally, the recently launched Empirical Legal Studies blog serves as a website where empirical legal scholars discuss research and contempo­ rary issues in the field. 256 There has also been a growth in the number of conferences focused on empirical legal scholarship. These range from small conferences, such as the empirical legal scholarship conference at Northwestern Law School,257 to national conferences, such as the empiri­ cal legal scholarship conference at the University of Texas-Austin Law School.258 Beyond law schools, agencies such as the National Science

251 Home Page, http://www.law.wisc.edu/ils/ (last visited October 26, 2006). 252 Research Programs Page, http://www.Iaw.berkeley.edu/centers/csls/research/ (last vis­ ited October 26, 2006). 253 About the Center, http://www.Iaw.buffalo.edu/baldycenter/about.htm (last visited No­ vember 9, 2006). 254 Colleen M. Cullen & S. Randall Kalberg, Chicago-Kent law Review Faculty Scholar­ ship Survey, 70 Ctt1.-KENT L. REv. 1445, 1453 (1995) (noting that the Journal of Legal Studies is one of the most cited and prestigious journals among law faculty); Eisenberg, supra note 242, at 1742; Heise, supra note 244, at 825. 255 Legal Scholarship Network, Experimental & Empirical Studies Information Page, http://www.ssrn.com/lsn/index.html (follow "Subject Matter eJournals" hyperlink; then follow "Experimental & Empirical Studies" hyperlink) (last visited November 5, 2006). 2 56 Empirical Legal Studies, http://www.elsblog.org/about.html (last visited October 26, 2006). The ELS blog was developed to "advance productive and interdisciplinary discourse among empirical legal scholars." Id. 257 Northwestern University School of Law, Conducting Empirical Legal Scholarship Workshop, http://www.law .northwestern .edu/faculty /conferences/empirical workshop.html (last visited November 9, 2006). 25 8 First Annual Conference on Empirical Legal Studies, http://www.utexas.edu/law/ news/2005/l 12805_black.html (last visited November 9, 2006). Of the fifty-four presentations, four explored the issue of race as indicated by the presentation abstracts. Social Science Re­ search Network, CELS 1st Annual Conference on Empirical Legal Studies, http://papers.ssm. corn/sol3/JELJOUR_Results.cfm?form_name=journalbrowse&journal_id=884320 (last visited November 19, 2006). For the full abstract of each paper, see Jeremy A. Blumenthal, Implicit Theories and Capital Sentencing: An Experimental Study (June 2006) (unpublished manu­ script, available at http://ssrn.com/abstract=909603); Dan M. Kahan et al., Gender, Race, and Risk Perception: The Influence of Cultural Status Anxiety (Apr. 7, 2005) (unpublished manu­ script, available at http://ssm.com/abstract=723762); Katherine Y. Barnes, Is Affinnative Ac­ tion Responsible for the Achievement Gap Between Black and White law Students? (Wash. 2008] TowARD A CRITICAL RACE REALISM 711

Foundation's Law and Social Science division259 and the National Insti­ tute of Justice260 aid in the development of empirical legal scholarship. Recent efforts have attempted to create a formalized movement among empirical scholars, known as the New Legal Realism Project. Currently, it is unclear how this movement differs from the law and soci­ ety movement.261 Nonetheless, for the past ten years academics have debated the need for a "new legal realism."262 Finally, in 2005, the American Bar Foundation and the University of Wisconsin Law School's Institute for Legal Studies sponsored the first New Legal Realism sym­ posium,263 which resulted in the publication of several articles.264 The New Legal Realism agenda consists of five points. First, it takes both a bottom-up and top-down approach. A bottom-up approach requires that empirical research must support assertions about the law's impact on everyday people's lives.265 This approach focuses on a con­ tinued effort to study decision-makers and institutions at the top. Fur­ thermore, this bottom-up approach requires an appreciation of "power arrangements and hierarchies" within our legal system.266 Second, new legal realists seek to facilitate some translation between law and social science-to bridge the gap between "epistemolog[ies], methods, operat­ ing assumptions and overall goals."267 Third, new legal realists attempt to reconcile the issue of research subjectivity in empirical research.268 Fourth, New Legal Realism must broaden its horizon and focus on both international and national issues.269 Finally, New Legal Realism incor­ porates not only empirical research and legal theory, but it must also

Univ. Sch. of Law, Working Paper No. 06-07-01, 2006), available at http://ssm.com/abstract= 913411; Samuel R. Sommers & Michael I. Norton, Race-Based Judgments, Race-Neutral Jus­ tifications: Experimental Examination of Peremptory Use and the Batson Challenge Proce­ dure, 31 L. & HuM. BEHAV. 261 (2007). 259 National Science Foundation, Law and Social Sciences, http://www.nsf.gov/funding/ pgm_summ.jsp?pims_id=5422&org=SES&from=home (last visited November 9, 2006). 260 National Institute of Justice, http://www.ojp.usdoj.gov/nij/ (last visited November 9, 2006). 261 See Empirical Legal Studies: My Take on New Legal Realism, http://www.elsblog. org/the_empirical_legal_studi/2006/06/my_take_on_new _.html (last visited November I 0, 2006) (showing that a number of members of the Empirical Legal Studies blog indicate that they cannot readily discern how New Legal Realism differs from the law and society movement). 262 See Howard Erlranger et al., Foreword: Is It Time for a New Legal Realism?, 2005 Wis. L. REv. 335, 337 n.7 (2005). 263 Id. at 335; New Legal Realism Home Page, http://www.newlegalrealism.org/ (last vis­ ited November 1, 2006). 264 Symposium, New Legal Realism: ls It Time for a New Legal Realism?, 2005 Wis. L. REv. 335 (2005); Symposium, New Legal Realism, 31 L. & Soc. INQUIRY 797 (2006). 265 See Erlranger et al., supra note 262, at 340. 266 Id. 267 Id. at 336, 341-42. 268 Id. at 342-43. 269 Id. at 343-44. 712 CORNELL JoURNAL OF LAW AND PUBLIC POLICY [Vol. 17:683 policy issues, too. 270 In doing so, New Legal Realism cannot simply be a method of critique; it must also point the way towards "positive social change."271 Over the past several years, the topic of race has taken some root within areas of empirical legal scholarship and social science and law literature. Maybe the clearest indication of this is the New Legal Real­ ism symposium issue of the Wisconsin Law Review. 272 Within the launch of this serious integration of empirical methods and legal scholar­ ship, more than one-quarter of the articles focused on race issues.273 Furthermore, half of the articles from the Law & Social Inquiry sympo­ sium focused on race issues.274 This suggests that there is at least some effort by empirical legal scholars to substantively address racial issues. In addition to efforts by empirical legal scholars and participants in the New Legal Realism Project, a number of scholars have come together to advance what they term Behavioral Realism.275 According to Behav­ ioral Realism, people have schemas for various categories, including ra­ cial categories.276 Individuals in these racial categories are then automatically ascribed some meaning based on the schema. There are a number of reasons why it is difficult to ascertain these meanings, such as that people often lack introspection or actively conceal their feelings about racial categories, for example.277 Behavioral Realists employ the Implicit Association Test as a measure of unconscious racial attitudes. Furthermore, their goal is to identify latent processes or assumptions in the law related to human decisionmaking and assess new scientific un­ derstanding about human behavior from the mind sciences.278 As articu­ lated by Jerry Kang, the law must then take into account models of human decisionmaking or state clearly that it will not take this new sci-

270 Id. at 345. 211 Id. 272 Symposium, New Legal Realism, supra note 264. 273 See Thomas W. Mitchell, Destabilizing the Normalization of Rural Black Land Loss: A Critical Role for Legal Empiricism, 2005 Wis. L. REv. 557 (2005); Laura Beth Nielsen & Robert L. Nelson, Rights Realized? An Empirical Analysis ofEmployment Discrimination Liti­ gation as a Claiming System, 2005 Wis: L. REV. 663 (2005); Devah Pager, Double Jeopardy: Race, Crime, and Getting a Job, 2005 Wis. L. REv. 617 (2005). 274 See John M. Conley, Tales of Diversity: Lawyers' Narratives of Racial Equity in Pri­ vate Firms, 31 LAw & Soc. INQUIRY 831 (2006); Mitu Gulati & Laura Beth Nielsen, Introduc­ tion: A New Legal Realist Perspective on Employment Discrimination, 31 Law & Soc. INQUIRY 797 (2006); Cheryl R. Kaiser & Brenda Major, A Social Psychological Perspective on Perceiving and Reporting Discrimination, 31 LAW & Soc. INQUIRY 801 (2006); Alexandra Kalev & Frank Dobbin, Enforcement of Civil Rights Law in Private Workplaces: The Effects of Compliance Reviews and Lawsuits Over Time, 31 LAW & Soc. INQUIRY 855 (2006). 275 See e.g., Jerry Kang, Behavioral Realism: Future History of Implicit Bias and the Law, Lecture at Ohio State University (Nov. 2006), http://www.Iaw.ucla.edu/kang/falks/talks.html. 276 Id. 277 Id. 278 Id. 2008] TowARD A CRITICAL RACE REALISM 713 ence into account.279 Kang further notes that the future of behavioral realism consists of answering a number of descriptive and normative questions. With regards to the former, does implicit racial bias exist? If it does, is there any real-world impact of implicit racial bias? Ifthere is a real-world impact, can it be countered in any way? With regards to the latter, should implicit racial bias be countered? If it should, does it re­ spect notions of individual autonomy? If it does, is the intervention law­ ful? Ultimately, as Kang further points out, social science and legal scholarship should help us answer these questions.280 Social science journals should decide if the science is correct, and law reviews should decide if the science is being validly employed.281 This burgeoning area of scholarship has produced fruitful works in the Harvard Law Review282 and collaborative efforts between psychology professors and law profes­ sors, as featured in the California Law Review Behavioral Realism symposium.283

B. CRITICAL RACE REALISM: CRITICAL RACE THEORY AND CONTEMPORARY MOVEMENTS Narrowly conceptualized, Critical Race Realism is not new. As noted, Charles Hamilton Houston balanced being a law school adminis­ trator, an academic, and a practicing civil rights lawyer. Moreover, law professors have engaged in social science, race and law as well as race and empirical legal scholarship for years. Below, in Subpart I, I high­ light the growth of such scholarship as a way to (1) note who is actually engaged in this type of scholarship and (2) help define what issues Criti­ cal Race Realism might continue to tackle and what new issues need to

279 Id. 280 Id. 281 Id. 282 Jerry Kang, Trojan Horses of Race, 118 HARV. L. REv. 1489 (2005) (describing the ways in which communication law, cognitive psychological research, and implicit racial bias intersect). 283 R. Richard Banks et al., Discrimination and Implicit Bias in a Racially Unequal Soci­ ety, 94 CAL. L. REv. 1169 (2006) (describing how implicit racial bias relates to racial bias, generally, and in the criminal justice system, specifically); Gary Blasi & John T. Jost, System Justification Theory and Research: Implications for Law, Legal Advocacy, and Social Justice, 94 CAL. L. REv. 1119 (2006) (describing how system justification theory may be understood in light of implicit racial bias); Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 CAL. L. REv 945 (2006) (describing the social scientific un­ derpinnings of implicit or "unconscious" racial bias); Christine Jolls & Cass R. Sunstein, The Law of Implicit Bias, 94 CAL. L. REv. 969 (2006) (describing the relations between implicit racial bias and antidiscrimination law); Linda Hamilton Krieger & Susan T. Fiske, Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment, 94 CAL. L. REv. 997 (2006) (describing the relationship between implicit racial bias and employment discrimination law); Jerry Kang & Mahzarin R. Banaji, Fair Measures: A Behavioral Realist Revision of "Affirmative Action," 94 CAL L. REv. 1063 (2006) (describing how affirmative action can be approached in light of implicit racial bias); see also Kang, supra note 282. 714 CORNELL JouRNAL OF LAW AND PUBLIC POLICY [Vol. 17:683 be addressed. Subpart 2 further clarifies what Critical Race Realism is or could be and the benefits stemming from this perspective. Subpart 3 suggests some ways in which Critical Race Realism might be more firmly established.

1. A Systematic Analysis of Race, Social Science, and Law Scholarship

To better define Critical Race Realism, what follows is an analysis of social science, race and law, as well as race and empirical legal schol­ arship over the past twenty years, since the founding of Critical Race Theory. My hope is that this will highlight the progression of this area of scholarship. The first analysis investigated social science, race and law, as well as race and empirical legal scholarship conducted by founders of Critical Race Theory. The second investigated social science, race and law, as well as race and empirical legal scholarship conducted by law faculty at the most highly ranked law schools. The third investigated social science, race and law, as well as race and empirical legal scholar­ ship published in the top twenty general law journals. The fourth investi­ gated social science, race and law, as well as race and empirical legal scholarship published in a select number of law journals focused on race or civil rights issues. The fifth investigated social science, race and law, as well as race and empirical legal scholarship published in interdiscipli­ nary social science and law journals. The sixth investigated unpublished social science, race and law, as well as race and empirical legal scholarship. Analysis 1: Social Science, Race and Law, and Race and Empirical Legal Scholarship Conducted by Critical Race Theory Founders For the first analysis, I selected the names of Critical Race Theory's principle figures from the chapter in Crossroads, Directions, and a New Critical Race Theory on the history of Critical Race Theory284 as well as Critical Race Theory: An Introduction. 285 Aside from the founding members, my focus was on Black principal figures. 286 I then conducted a Westlaw search of each individual's journal and law review articles. The search terms were AU(first name /2 last name) & "social scien!" empiric! quantitative Is race "African American." The searches were restricted between the founding year of Critical Race Theory, 1987, and 2006. Final searches were conducted in October of 2006. In conjunction

284 Crenshaw, supra note 202, at 30 n.18. 285 DELGADO & STEFANCIC, supra note 4, at v-xi. 286 In addition to Alan Freeman and Charles Lawrence, for the principle members identi­ fied, see Crenshaw supra note 202, at 30 n.18. 2008] TowARD A CRITICAL RACE REALISM 715 with this search method, results from analyses two through four were also perused to cross-check and ascertain whether additional results were found that were not produced by this first analysis. Only those results that focused on race and with at least one-fourth textual content about social science, race and law, or race and empirical legal scholarship served as actual results for this analysis. Additionally, if any utilized result was part of a symposium, the other symposia articles were ana­ lyzed to determine if they too fit within the aforementioned criteria. If they did, they were included in this analysis. These results are listed below; journal articles with at least a designated section on social sci­ ence, race and law, or race and empirical legal scholarship are footnoted. This analysis only yielded two results. Between 1987 and 2001, principal Critical Race Theory figures published no social science, race and law, or race and empirical legal scholarship law journal articles.287 Between 2002 and 2006, they published two law journal articles. 288 The­ matically, both articles focused on race, law, and economics.289 Analysis 2: Social Science, Race and Law, and Race and Empirical Legal Scholarship Conducted by Faculty at Top Law Schools For the second analysis, I employed U.S. News and World Report's "America's Best Graduate Schools 2007'' to identify the top twenty law schools.290 I then examined the websites for those law schools to iden­ tify faculty possibly engaged in social science, race and law or race and empirical legal scholarship. I only included full-time faculty teaching doctrinal courses in the analysis. Thus, I excluded emeritus faculty, vis-

287 Only one journal article even had a section dedicated to social science, race and law, or race and empirical legal scholarship. See Richard Delgado, Rodrigo's Roadmap: ls the Marketplace Theory for Eradicating Discrimination a Blind Alley?, 93 Nw. U. L. REV. 215, 238-40 (1998) (describing studies of helping behavior in cross-racial situations). 288 Additionally, one journal article had a section dedicated to social science, race and law, or race and empirical legal scholarship. See Isabelle R. Gunning, Perceptions, Categori­ zations, and Impartiality: Arbitrators and Racial Equality in Arbitration, 4 J. AM. ARB. 59, 72 nn.50-51 (2005) (discussing the social scientific assessment of racial bias and applying this research to the field of arbitration). 289 See Culp et al., supra note 8 (analyzing the continuing existence of racism in light of empirical scholarship on its pervasiveness); Robert E. Suggs, Poisoning the Well: Law & Eco­ nomics and Racial Inequality, 57 HASTINGS L.J. 255 (2005) (applying law and economics analysis to issues of race). 290 American's Best Graduate Schools: Complete Guide to Law Schools, http://www.us news.corn/usnews/edu/grad/rankings/law/lawindex_brief.php (last visited October 1, 2006). I only include faculty at the top twenty law schools as a way to streamline this analysis. I realize that my methodological approach excludes many faculty who may be engaged in research relevant to the topic of this article. I also realize that my methodological approach may seem­ ingly reify the hierarchical nature of legal education. See DuNcAN KENNEDY, LEGAL EDUCA­ TION AND THE REPRODUCTION OF HIERARCHY: A POLEMIC AGAINST THE SYSTEM (I 982). However, to conduct an analysis of faculty at all law schools would be prohibitively burden­ some given the scope of this Note. 716 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 17:683 iting faculty, clinical faculty, adjunct faculty, and fellows from the analy­ sis. I then examined the websites of identified faculty to determine whether they engaged in race scholarship. The terms race, antidis­ crimination, civil rights, and employment discrimination were employed in the search. For faculty engaged in antidiscrimination, civil rights, or employment discrimination research, I also looked for additional infor­ mation which might suggest that they are particularly interested in race scholarship as opposed to, for example, sexual discrimination or sexual orientation discrimination scholarship. Specifically, this was determined by what type of scholarship they had published since 2000 or by what their other research foci were. For some faculty, their research interests were clearly indicated on their website under Areas of Interest or Areas of Expertise. For others, their research interest was gleaned from the courses they taught, their scholarship since 2000, or identified on their Curriculum Vitae posted on their website. I also selected full-time faculty from The AALS Directory of Law Teachers, 2005-2006 who were identified by the subject areas Critical Race Theory or Civil Rights. 291 One hundred forty-two faculty members were identified via this method.292

291 THE AALS DIRECTORY OF LAw TEACHERS, 2005-2006 at 1137-38, 1169-72, 1238-39 (2005). 292 The professors at the following institutions were identified: At Yale, the thirteen faculty members were Bruce Ackerman, Ian Ayres, Richard Brooks, Harlon Dalton, Drew Days, III, John Donahue, Owen M. Fiss, Paul D. Gewirtz, Christine Jolls, Dan M. Kahan, Vicki Schultz, Reva Siegel, and Kenji Yoshino. At Stanford, the five faculty members were R. Richard Banks, Richard Thompson Ford, Pamela S. Karlan, Mark G. Kelman, and Alison D. Morantz. At Harvard, the six faculty members were Lani Guinier, Janet E. Halley, Randall L. Kennedy, Kenneth Mack, Charles J. Ogletree, and David B. Wilkins. At Columbia, the nine faculty members were Kimberle Williams Crenshaw, Elizabeth F. Emens, Katherine M. Franke, Jack Greenberg, Olatunde Johnson, James Liebman, Kendall Thomas, Patricia Wil­ liams, and Mary Marsh Zulack. At New York University, the seven faculty members were Derrick Bell, Paulette Caldwell, Samuel Estreicher, Cynthia Estlund, Deborah Malamud, Rich­ ard H. Pildes, and Cristina Rodriguez. At Chicago, the one faculty member was Tracey L. Meares. At Michigan, the five faculty members were Roderick Maltman Hills, Jr., Ellen D. Katz, Katherine A. MacKinnon, Rebecca J. Scott, and Marjorie M. Shultz. At the University of Pennsylvania, the seven faculty members were Regina Austin, C. Edwin Baker, Howard Les­ nick, Serena Mayeri, Anita L. Allen, Wendell Pritchett, and David Rudovsky. At Boalt, the eleven faculty members were Kathryn Abrams, Lauren B. Edleman, Christopher Edley, Jr., Malcolm M. Feeley, Philip P. Frickey, Ian F. Haney Lopez, Angela P. Harris, Linda Hamilton Krieger, Goodwin Liu, Jonathan Simon, and Jan Vetter. At the University of Virginia, the fifteen faculty members were Barbara E. Armacost, Tomiko Brown-Nagin, Kim Forde­ Mazuri, Risa Goluboff, John C. Jefferies, Jr., Michael J. Klarman, Peter W. Low, Richard A. Merrill, Daniel R. Ortiz, George Rutherglen, James E. Ryan, Richard C. Schragger, A. John Simmons, J. H. Verkerke, and Ann Woolhandler. At Duke, the five faculty members were Erwin Chemerinsky, Mitu Gulati, Trina Jones, Charles Clotfelter, and Karla F. Hollow. At Northwestern, the four faculty members were Dorothy E. Roberts, Leonard Rubinowitz, Mayer G. Freed, and Charlton Copeland. At Cornell, the four faculty members were Valarie Hans, Barbara J. Holden-Smith, Sherri Lynn Johnson, and Winnie F. Taylor. At Georgetown, the eleven faculty members were Charles F. Abernathy, Sheryll D. Cashin, Anthony E. Cook, 2008] TowARD A CRITICAL RACE REALISM 717

I then conducted a Westlaw search of each individual's journal and law review articles. The search terms were AU(first name /2 last name) & "social scien!" empiric! quantitative Is race "African American". The searches were restricted between the founding year of Critical Race Theory, 1987, and 2006. Final searches were conducted in October of 2006. In conjunction with this search method, results from analyses one, three, and four were also employed to cross-check and ascertain whether additional results were found not produced by this analysis. Only those results that focused on race and with at least one-fourth textual content about social science, race and law, or race and empirical legal scholar­ ship were included in this analysis. Additionally, if any utilized result was part of a symposium, the other symposia articles were analyzed to determine if they too fit within the aforementioned criteria. If they did, they also served as actual results for this analysis. These results are listed below, journal articles with at least a designated section on social science, race and law, or race and empirical legal scholarship are footnoted. This analysis yielded twenty-seven results. Between 1987 and 1991, faculty at the top twenty law schools published two social science, race and law, or race and empirical legal scholarship law journal articles.293 These articles focused on how the intent standard works in racial dis­ crimination cases294 and the role of unconscious racism in criminal law. 295 Between 1992 and 1996, faculty at the top twenty law schools

Chai Rachel Feldblum, Michael H. Gottesman, Emma Coleman Jordan, Charles R. Lawrence, III, Mari J. Matsuda, Carrie J. Menkel-Meadow, Eleanor Holmes Norton, and Elizabeth Hayes Patterson. At U.C.L.A, the nine faculty members were Gary Blasi, Devon W. Carbado, Kimberle Williams Crenshaw, Robert David Goldstein, Joel F. Handler, Cheryl I. Harris, Jerry Kang, Christine A. Littleton, and Russell Robinson. (Professor Crenshaw was double-counted, as she holds a joint-appointment with Columbia and U.C.L.A.) At U.S.C., the seven faculty members were Jody Armour, Kareem Crayton, David B. Cruz, Mary L. Dudziak, Susan Es­ trich, Thomas Griffith, and Ariela Gross. The four Vanderbilt faculty professors were Robert Belton, John C. P. Goldberg, Joni Hersch, and Carol M. Swain. The nine George Washington faculty members were Paul Butler, Robert J. Cottrol, Charles B. Craver, C. Thomas Dienes, Frederick M. Lawrence, Spencer A. Overton, Alfreda Robinson, Michael Selmi, and Joan E. Schaffner. The three University of Minnesota professors were Guy-Uriel E. Charles, Jill Elaine Hasday, and Alex M. Johnson, Jr. Finally, the seven University of St. Louis faculty members were Katherine Y. Barnes, Samuel R. Bagenstos, Christopher Bracey, Pauline T. Kim, D. Bruce La Pierre, Kimberly Jade Noorwood, and Margo Schlanger. 293 See Sherri Lynn Johnson, The Color of Truth: Race and the Assessment of Credibility, 1 M1ctt. J. RAcE & L. 261, 312-17 (1996) (describing the psychological dynamics of race and assessments of credibility); Randall L. Kennedy, McCleskey v. Kemp: Race, Capital Punish­ ment, and the Supreme Court, 101 HARV. L. REV. 1388, 1395-1402 (1988) (discussing judi­ cial response to statistical evidence about racial disparities in capital sentencing). 2 9 4 See Theodore Eisenberg & Sherri Lynn Johnson, The Effects of Intent: Do We Know How Legal Standards Work?, 76 CORNELL L. REv. 1151 (I 991) (providing an empirical analy­ sis of the intent standard). 2 9 5 See Sherri Lynn Johnson, Unconscious Racism and the Criminal Law, 73 CORNELL L. REv. 1016 (1988). 718 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 17:683 published six social science, race and law, or race and empirical scholar­ ship law journal articles.296 These articles explore such topics as dis­ crimination in employment law,297 bail setting,298 how mental heuristics lead to racism in legal contexts,299 land ownership,300 and stereotyping and prejudice among legal decision-makers.301 Between 1997 and 2001, these faculty members published six social science, race and law, or race and empirical scholarship law journal articles.302 The topics explored were voter redistricting,303 racial attitudes about crime control,304 and affirmative action. 305 Between 2002 and 2006, these faculty members

296 See Ian Ayres, Narrow Tailoring, 43 UCLA L. REV. 1781, 1829-38 (1996) (providing cost-benefit analysis to narrow tailoring within the context of affirmative action). 29 7 See Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Ap­ proach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REv. 1161 (1995) (exploring the intersection of cognitive psychology, discrimination, and employment law); Vicki Schultz & Stephen Petterson, Race, Gender, Work, and Choice: An Empirical Study of the Lack of Interest Defense in Title VII Cases Challenging Job Segregation, 59 U. CHI. L. REv. 1073 (1992) (analyzing federal court decisions addressing the Jack of interest defense since Title VII's enactment with particular regards to race). 298 See Ian Ayres & Joel Waldfogel, A Market Test for Race Discrimination in Bail Set­ ting, 46 STAN. L. REv. 987 (1994) (providing an empirical analysis of racial discrimination and bail setting). 299 See Jody D. Armour, Race Ipsa Loquitur: Of Reasonable Racists, Intelligent Baye­ sians, and Involuntary Negrophobes, 46 STAN. L. REv. 781 (1994) (describing, generally, how mental shortcuts or heuristics lead people to be racist within the legal context). 300 See Ellen D. Katz, African American Freedom in Antebellum Cumber/ad County, Vir­ ginia, 70 Ctt1.-KENT L. REv. 927 (1995) (exploring land ownership in the antebellum South). 301 See Jody Armour, Stereotypes and Prejudice: Helping Legal Decisionmakers Break the Prejudice Habit, 83 CAL. L. REv. 733 (1995) (discussing how psychological research on stereotyping and prejudice may help legal decisionmakers break such habits within legal contexts). 302 See Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN L. REV. 1111, 1135-46 (1997) (discussing the utility of social science research on unconscious bias and this research's applicability to equal protection). 303 See Richard H. Pildes, Principled Limitations on Racial and Partisan Redistricting, 106 YALE L.J. 2505 (1997) (exploring whether race-conscious redistricting should be constitutional). 304 See Richard R.W. Brooks, Fear and Fairness in the City: Criminal Enforcement and Perceptions of Fairness in Minority Communities, 73 S. CALL. REv. 1219 (2000) (providing an empirical analysis of minority communities' perceptions of police criminal enforcement); Tracey L. Meares, Charting Race and Class Differences in Attitudes Toward Drug Legaliza­ tion and Law Enforcement: Lessons for Federal Criminal Law, 1 BuFF. CRIM. L. REV. 137 (1997) (providing an empirical analysis of racial attitudes concerning drug legalization and enforcement). 305 See Ian Ayres & Fredrick E. Vars, When Does Private Discrimination Justify Public Affirmative Action?, 98 CoLuM. L. REv. 1577, 1587 (1998) ("[T]he government can remedy shortfalls in private purchasing only when the firms disadvantaged by the government's af­ firmative action were likely beneficiaries of the private discrimination. This principle implies that the government cannot use affirmative action in one market to remedy discrimination in another. But when purchasing a particular product, the government should be able to remedy private discrimination against sellers of the same product. The but-for adjustment does just this to remedy shortfalls in government purchasing; the single-market justification expands the 2008] TowARD A CRITICAL RACE REALISM 719 published seventeen social science, race and law, or race and empirical scholarship law journal articles. 306 These articles explore such topics as Law and Economics,307 unconscious racism,308 lawyer advocacy against racism,309 affirmative action in law school admissions,310 school deseg­ regation,311 and voter-rights.312 On average, the University of Virginia faculty published .18 articles per faculty member intersecting social science, race and law, or race and empirical legal scholarship over the past 20 years. The Yale and Michi­ gan faculty both published .2 articles, on average. The New York Uni­ versity faculty published an average of .29 articles. The University of Southern California faculty published an average of .4 articles. The Yale procurement remedy to correct for shortfalls in private purchasing ...."); Tomiko Brown­ Nagin, A Critique of Instrumental Rationality: Judicial Reasoning About the "Cold Numbers" in Hopwood v. Texas, 16 LAW & lNEQ. 359 (1998); Linda Hamilton Krieger, Civil Rights Perestroika: Intergroup Relations After Affirmative Action, 86 CAL. L. REv. 1251 (1998) (ex­ ploring the implications of social cognition and social identity theory for the affirmative action debate). 306 Three journal articles included sections dedicated to social science, race and law, or race and empirical legal scholarship. See John H. Blume et al., Education and Interrogation: Comparing Brown and Miranda, 90 CORNELL L. REv. 321, 329-31 (2005) (indicating that Brown and Miranda both employed extra-legal materials (i.e., social science and police manu­ als) to broaden their legal arguments); Guy-Uriel E. Charles, Racial Identity, Electoral Struc­ tures, and the First Amendment Right ofAssociation, 91 CAL. L. REv. I 209, 1229-31 (2003) (employing social psychology towards understanding the relationship between individual and group racial identity); Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown, 117 HARV. L. REv. 1470, 1484-89 (2004) (discussing resistance to footnote 11 of Brown v. Board of Education where social scientific studies were employed to advance the arguments for school integration). 307 See Ayres, supra note 8 (2003) (arguing that race-contingent behavior is not undefined but actually knowable); Ian Ayres et al., To Insure Prejudice: Racial Disparities in Taxicab Tipping, 114 YALE L.J. 1613 (2005) (providing an empirical analysis of racial discrimination in consumer economic behavior-taxicab tipping); Carbado & Gulati, supra note 8 (discussing how workplace discrimination may be understood from the intersection of law and economics and critical race theory); Culp et al., supra note 8 (providing some closing analysis on the continuing existence of racism in light of empirical scholarship on its pervasiveness). 308 See Banks et al., supra note 283; Blasi & Jost, supra note 283; Greenwald & Krieger, supra note 283; Jolls & Sunstein, supra note 283; Krieger & Fiske, supra note 283; Kang, supra note 282; Kang & Banaji, supra note 283. 309 See Gary Blasi, Advocacy Against the Stereotype: Lessons From Cognitive Social Psy­ chology, 49 UCLA L. REv. 1241, 1241 (2002) (providing "a brief overview of the rapidly developing science regarding stereotypes and prejudice, and ... the implications for lawyers and other advocates"); Blasi & Jost, supra note 283. 310 See Ian Ayres & Richard Brooks, Does Affirmative Action Reduce the Number of Black Lawyers?, 57 STAN. L. REv. 1807 (2005) (providing an empirical rebuttal to the argu­ ment that affirmative action in law schools serves to reduce the number of black lawyers). 3 I I See James E. Ryan, The limited Influence of Social Science Evidence in Modem De­ segregation Cases, 81 N.C. L. REv. 1659 (2003) (discussing the influence of social science on modern school desegregation cases). 312 Richard H. Pildes, Is Voting-Rights Law Now at War with Itself? Social Science and Voting Rights in the 2000s, 80 N.C. L. REv. 1517 (2002) (exploring the limits of race-con­ scious redistricting). 720 CORNELL JouRNAL OF LAw AND Pusuc Poucy [Vol. 17:683 and Cornell faculty published an average of .72 and .75 articles, respec­ tively. Both the Boalt and University of California at Los Angeles faculty published an average of .83 articles. The one faculty member identified at the University of Chicago published an average of 1 article. Collectively, over the past 20 years, law faculty at the top twenty law schools have published an average of .49 articles intersecting social sci­ ence, race and law, or race and empirical legal scholarship. The results for this analysis are reported in Table 1. Only those law schools with at least one publication are tabled.

TABLE 1. LAW FACULTY ENGAGED IN RACE/SOCIAL SCIENCE RESEARCH

1987-1991 1992-1996 1997-2001 2002-2006 Average Yale(!!) 0 2 2 4 .72 Stanford (5) 0 0 0 I .2 NYU (7) 0 0 I I .29 U. Chicago (I) 0 0 I 0 I Boalt (6) 0 I I 3 .83 Michigan (5) 0 I 0 0 .2 UVA (II) 0 0 I I .18 Cornell (4) 2 0 0 I .75 UCLA (6) 0 0 0 5 .83 USC (5) 0 2 0 0 .4 Total 2 6 6 16 30/.49 Note. The number of faculty at each law school is indicated in parentheses next to each school's name.

Analysis 3: Social Science, Race and Law, and Race and Empirical Legal Scholarship Published in the Top Twenty General Law Journals In the third analysis, I employed Washington and Lee Law School's journal ranking system to identify the top, general law journals.313 My search query was for U.S., General journals. I searched the most recent database update, 2005, by impact-factor (IF) and selected the top twenty journals.314 I then conducted a Westlaw search of each journal. Under

3 13 Law Journals: Submissions and Rankings, http://lawlib.wlu.edu/LJ/ (last visited Octo­ ber 1, 2006). I only include the top twenty general law journals in my analysis as a way to streamline the analysis. I realize that my methodological approach excludes many articles that are published in various other general law journals. However, it would be prohibitive to con­ duct an analysis of all general law journals given the scope of this article. 31 4 The identified journals were: Yale Law Journal, Columbia Law Review, New York University Law Review, Cornell Law Review, Stanford Law Review, Virginia Law Review, Harvard Law Review, California Law Review, University of Pennsylvania Law Review, Duke Law Journal, Vanderbilt Law Review, Minnesota Law Review, University of Chicago Law Review, UCLA Law Review, Northwestern University Law Review, Texas Law Review, South- 2008] TowARD A CRITICAL RACE REALISM 721

"Search these databases," I input each journal, separately. Then for each journal, the search terms employed were "social scien!" empiric! quanti­ tative Is race "African American". The searches were restricted between 1987 and 2006. Final searches were conducted in October of 2006. In conjunction with this search method, results from analyses one, two, and four were also perused to cross-check and ascertain whether additional results were found not produced by this analysis. Only those results that focused on race and with at least one-fourth textual content about social science, race and law, or race and empirical legal scholarship served as actual results for this analysis. Additionally, if any utilized result was part of a symposium, the other symposia articles were analyzed to deter­ mine if they too fit within the aforementioned criteria. If they did, they also served as actual results for this analysis. These results are listed below; journal articles with at least a designated section on social sci­ ence, race and law, or race and empirical legal scholarship are footnoted. As shown in Table 2, this analysis yielded forty-four results. Spe­ cifically, between 1987 and 1991, the top twenty general law reviews published three articles on social science, race and law, or race and em­ pirical legal scholarship.315 The topics of these articles included the in­ tent standard in racial discrimination cases,316 the role of unconscious racism in criminal law,317 and the changing nature of employment dis­ crimination litigation.318 Between 1992 and 1996, the top twenty general law reviews published seven articles in the area of social science, race and law, or race and empirical legal scholarship.319 These articles ex- em California Law Review, William and Mary Law Review, Indiana Law Review, and Iowa Law Review. 315 In addition to these three articles, four others dedicated a section to social science, race and law, or race and empirical legal scholarship. See T. Alexander Aleinikoff, A Case for Race-Consciousness, 91 CoLUM. L. REV. 1060, 1066-69 (1991) (discussing the effect of race­ consciousness as "an entrenched structure of thought" on how people organize and process information using examples, including two incidents in a law school); Developments in the Law: Race and the Criminal Process, IOI HARV. L. REv. 1472, 1525-32 (1988) (discussing empirical studies on race of defendants and the prosecutorial decisionmaking process); Randall L. Kennedy, McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Coun, 101 HARV. L. REv. 1388, 1395-402 (1988) (discussing judicial response to statistical evidence about racial disparities in capital sentencing); Matthew L. Spitzer, Justifying Minority Prefer­ ences in Broadcasting, 64 S. CAL. L. REv. 293, 319-46 (1991) (describing the social scientific models in understanding the broadcasting station owner's characteristics and programming choices). 316 See Eisenberg & Johnson, supra note 294. 317 See Johnson, supra note 295. 318 See John J. Donahue, III & Peter Siegelman, The Changing Nature of Employment Discrimination Litigation, 43 STAN. L. REv. 983 (1991). 3 I 9 Two additional journal articles included sections on social science, race and law, or race and empirical legal scholarship. See Ayres, supra note 296, at 1829-38 (applying margi­ nal cost-benefit analysis to assess whether a program is narrowly tailored within the context of affirmative action); Michael John Weber, Immersed in an Educational Crisis: Alternative Pro- 722 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 17:683 plored discrimination in a variety of contexts, such as employment,320 bail setting,321 and lending.322 They also discussed race-based self-de­ fense claims,323 economic theories of racial discrimination,324 and color­ blind formalism in courtrooms.325 Similarly, between 1997 and 2001, a small number of law journal articles (five) were published by the top twenty general law reviews on social science, race and law, or race and empirical legal scholarship. 326 Four of these articles focused on affirma­ tive action327 while one focused on attitudes of minorities towards crime grams for African-American Males, 45 STAN. L. REv. 1099, 1102-21 (1993) (discussing the "[t]heoretical and [e]mpirical [s]upport for the African-American [m]ale [p]ublic [s]chools"). 32 0 See Krieger, supra note 297 (arguing that cognitive bias is a source of discriminatory decision-making that the Title VII jurisprudence has failed to address); Schultz & Petterson, supra note 297 (analyzing federal court decisions in race and sex discrimination cases that addressed the lack of interest defense since Title VII's enactment). 321 For a discussion of a market-based test of unjustified disparate impact using data from the bail bond market that demonstrated systematic over-deterrence of black and male Hispanic defendants, see Ayres & Waldfogel, supra note 298. 322 See Peter P. Swire, The Persistent Problem of Lending Discrimination: A Law and Economics Analysis, 73 TEx. L. REv. 787 (1995) (discussing the persistence of lending dis­ crimination and possible remedies under the fair lending laws). 323 See Armour, supra note 301 (arguing against the legal recognition of race-based self­ defense claims by implicating a variety of jurisprudential concerns). 324 See Richard H. McAdams, Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination, 108 HARV. L. REV. 1003 (1995) (providing an economic analysis of group formation that is essential to a genuine understanding of racial discrimination). 325 See Armour, supra note 301 (using psychological research on stereotyping and prejudice to support the argument that colorblind formalism is counterproductive in reducing racial discrimination while referencing stereotypes in court may actually enhance fairness). 326 Eight additional journal articles dedicated a section to social science, race and law, or race and empirical legal scholarship. See Delgado, supra note 287, at 238-40 (describing studies of helping behavior in cross-race situations); Tanya Katerf Hernandez, Sexual Harass­ ment and Racial Disparity: The Mutual Construction of Gender and Race, 4 J. GENDER RAcE & JusT. 183, 186-94 (2001) (analyzing statistical data that suggests racial disparity of sexual harassment in the United States and discussing the early explanation for the statistical pattern); Blake D. Morant, Law, Literature, and Contract: An Essay in Realism, 4 MICH. J. RACE & L. I, 25-28 (1998) (discussing the influences perception has on human behavior-termed "social cognition"-and the resulting discrimination in the context of contract law); Steven A. Rami­ rez, A General Theory of Cultural Diversity, 7 MICH. J. RACE & L. 33, 40-51 (2002) [herein­ after Ramirez, Cultural Diversity] (discussing the concept of race in science and social science); Steven A. Ramirez, The New Cultural Diversity and Title VII, 6 MICH. J. RACE & L. 127, 137-39 (2001) [hereinafter Ramirez, New Cultural Diversity] (discussing empirical data supporting the proposition that embracing diversity generally creates benefits for a business entity); Siegel, supra note 302, at 1135-46 (discussing the current operation of the doctrine of discriminatory purpose in the American legal system); Kim Taylor-Thompson, Empty Votes in Jury Deliberations, 113 HARV. L. REv. 1261, 1272-76, 1290-95 (2000) (discussing the social science research on the effects of majority rule and empirical evidence on the impact of juror race on jury deliberations); Anthony C. Thompson, Stopping the Usual Suspects: Race and the Fourth Amendment, 74 N.Y.U. L. REV. 956, 983-91 (1999) (exploring how social science research helps explain the impact race has on police officers' assessment of probable cause and reasonable suspicion). 327 See Ayres & Vars, supra note 305 (offering a new set of constitutionally viable justifi­ cations for affirmative actions); Krieger, supra note 305 (exploring the implications of social 2008] TowARD A CRITICAL RACE REALISM 723 control.328 Finally, we see a large increase for the period between 2002 and 2006 with twenty-nine articles on social science, race and law, or race and empirical legal scholarship published by the top twenty general law reviews.329 These articles explore such topics as the critical race

cognition and social identity theory for the affirmative action debate); Deborah Jones Merritt & Barbara F. Reskin, Sex, Race, and Credentials: The Truth About Affirmative Action in Law Faculty Hiring, 97 CoLUM. L. REv. 199 (1997) (analyzing the effects of race and sex on tenure-track hiring at accredited law schools using results from a comprehensive empirical study); Linda F. Wightman, The Threat to Diversity in Legal Education: An Empirical Analy­ sis of the Consequences ofAbandoning Race as a Factor in Law School Admission Decisions, 72 N.Y.U. L. REv. I (1997) (demonstrating through a comprehensive empirical analysis that affirmative action is likely needed to maintain a diverse law student body). 328 See Brooks, supra note 304 (providing an empirical analysis of minority communities' perceptions of police criminal enforcement). 329 Eleven journal articles, in addition to the twenty-nine yielded by the search, also in­ cluded sections dedicated to social science, race and law, or race and empirical legal scholar­ ship. See Samuel R. Bagenstos, The Structural Tum and the Limits ofAntidiscrimination Law, 94 CALL. REv. I, 5-10 (2006) (proposing a structural approach to the antidiscrirnination law based on the recognition of the pervasiveness of implicit bias); Blume et al., supra note 306, at 329-31 (pointing out that both Brown and Miranda decisions employed extra-legal materials such as social science research and police manuals to broaden their legal arguments); Jennifer C. Braceras, Killing the Messenger: The Misuse of Disparate Impact Theory to Challenge High-Stakes Educational Tests, 55 VAND. L. REv. 1111, 1186-87 (2002) (arguing that while the statistical discrimination rationale for the use of the disparate impact approach may be appropriate in the employment context, it is not applicable in the context of educational assess­ ment); Deborah L. Brake, Retaliation, 90 MINN. L. REv. 18, 25--42 (2005) (suggesting ratio­ nales for providing discrimination claimants strong legal protection against retaliation through social science research); Charles, supra note 306, at 1229-31 (discussing the relationship be­ tween individual and group identity through social psychology); Daniel M. Filler, Silence and the Racial Dimension of Megan's Law, 89 IOWA L. REV. 1535, 1578-81, 1582-87 (2004) (suggesting that the lack of racial data may help explain the absence of race as an issue in the debate of Megan's Law and offering social and psychological explanations for the lack of such data); Joy Milligan, Pluralism in America: Why Judicial Diversity Improves Legal Decisions About Political Morality, 81 N.Y.U. L. REv. 1206, 1212-30 (2006) (describing how social science aids our understanding of how political morality varies among U.S. racial groups and how such variation relates to judicial decisionmaking); Radha Natarajan, Racialized Memory and Reliability: Due Process Applied to Cross-Racial Eyewitness Identifications, 78 N.Y.U. L. Rev. 1821, 1834-39 (2003) (discussing psychological studies that support the existence of own-race bias and bring the reliance on cross-racial eye witness identifications into question); Yoav Sapir, Neither Intent nor Impact: A Critique of the Racially Based Selective Prosecution Jurisprudence and a Reform Proposal, 19 HARV. BLACK.LETTER L.J. 127, 130-33 (2003) (pro­ viding empirical evidence of racial bias in prosecutorial discretion); Siegel, supra note 306, at 1484-89 (discussing resistance to footnote 11 of Brown v. Board of Education in which social scientific studies were employed to advance the arguments for school integration); Sylvia R. Lazos Vargas, Does a Diverse Judiciary Attain a Rule of Law that ls Inclusive?: What Grutter v. Bollinger Has to Say About Diversity on the Bench, 10 MICH. J. RACE & L. IOI, 131-37 (2005) (describing empirical studies that explored the relationship between judges' personal attributes, such as gender, race, and political affiliations, and their rulings). 724 CORNELL JOURNAL OF LAw AND PUBLIC POLICY [Vol. 17 :683 theory and the law and economics,330 implicit bias,331 racial disparities in medical care,332 racial profiling, 333 and implications for lawyers in advo­ cating against racism.334 Other articles focused on issues that arose in the context of education, such as the use of social science in Brown v. Board ofEducation,335 education finance reform litigation,336 affirmative

330 See Ayres, supra note 8 (arguing that race-contingent behavior is not undefined but actually knowable and increasingly known); Ayres et al., supra note 307 (providing an empiri­ cal analysis of racial discrimination in taxicab tipping, a dimension of consumer economic behavior that is both discretionary and observable); Carbado & Gulati, supra note 8 (discuss­ ing how workplace discrimination may be understood from combining the law & economics and critical race theory even though the two theories are often perceived as oppositional dis­ courses); Case, supra note 8 (advocating for a taxonomy that focuses on the perspectives of the persons discriminated against in shaping remedies for discrimination); Culp et al., supra note 8 (analyzing the critical race theory and its impact on our understanding of racial discrimina­ tion); Freshman, Foreward: Revisioning the Constellations, supra note 8 (setting the stage for a discussion about the critical race theory and law & economics); Freshman, Prevention Per­ spectives, supra note 8 (looking at categories of discrimination from the perspective of preven­ tion); Haynes, supra note 8 (describing the pervasiveness of racial discrimination); Moran, supra note 9 (demonstrating that both law and economics and critical race theory can benefit from each other while each generates different "doctrinal dilemmas and policy puzzles"). 331 See Banks et al., supra note 283 (using empirical studies that demonstrated the persua­ siveness of racial inequalities to probe the nature of the consensus opposition to bias and discrimination); Blasi & Jost, supra note 283 (demonstrating the important implications of the system justification theory-which operates at both the explicit and implicit level of conscious awareness-for "law, lawyering, and advocacy for social justice"); Greenwald & Krieger, supra note 283 (discussing the scientific foundations of implicit or "unconscious" bias); Jolls & Sunstein, supra note 283 (suggesting that implicit bias may be controlled through antidis­ crimination Jaws); Kang, supra note 282 (describing cognitive psychological research on im­ plicit bias); Kang & Banaji, supra note 283 (arguing that the meaning of certain affirmative action prescriptions can be revised with the help of the science of implicit social cognition); Krieger & Fiske, supra note 283 (applying the methods of behavioral realism to Title VII disparate treatment cases and arguing that this reading of disparate treatment principles is consistent with Supreme Court precedent, statutory interpretation, and principles of judicial restraint); Michael S. Shin, Redressing Wounds: Finding A Legal Framework to Remedy Ra­ cial Disparities in Medical Care, 90 CAL. L. REV. 2047 (2002) (exploring the possibility that "implicit cognitive bias, in the form of implicit attitudes and stereotypes, significantly contrib­ utes to racial disparities in medical treatment"). 332 See Shin, supra note 331. 333 See Bernard E. Harcourt, Rethinking Racial Profiling: A Critique of the Economics, Civil Liberties, and Constitutional Literature, and of Criminal Profiling More Generally, 71 U. CHI. L. REv. 1275 (2004) (seeking to clarify "the empirical controversies surrounding racial profiling and thereby shed light on the policy and constitutional law debates"). 334 See Blasi, supra note 309 (providing "a brief overview of the rapidly developing sci­ ence regarding stereotypes and prejudice, and ... the implications for lawyers and other advo­ cates"); Blasi & Jost, supra note 283 (demonstrating the important implications of the system justification theory, which operates at both the explicit and implicit level of conscious aware­ ness, for "law, lawyering, and advocacy for social justice"). 335 See Sanjay Mody, Brown Footnote Eleven in Historical Context: Social Science and the Supreme Court's Quest for Legitimacy, 54 STAN. L. REv. 793 (2002) (arguing that the Court did not rely on the footnote eleven social science studies and explaining reasons for the Court's desire to refer to the studies cited in footnote eleven). 336 See Y ohance C. Edwards & Jennifer Ahem, Unequal Treatment in State Supreme Courts: Minority and City Schools in Education and Finance Refonn Litigation, 79 N.Y.U. L. 2008] TowARD A CRITICAL RACE REALISM 725 action in law school admissions,337 and fairness of LSAT to students of color.338 The results of this analysis are summarized in Table 2. Only those journals with at least one published article on social science, race and law, or race and empirical legal scholarship are tabled.

REv. 326 (2004) (testing the influence of two factors, the predominant race and setting of plaintiff school districts, on the outcome of education finance reform litigation). 337 See Ayres & Brooks, supra note 310 (rebutting the claim that affirmative action in law schools has reduced the number of black lawyers and arguing that elimination of affirmative action instead would reduce the number of black lawyers); David L. Chambers et al., The Real Impact of Eliminating Affirmative Action in American Law Schools: An Empirical Critique of Richard Sander's Study, 57 STAN. L. REv. 1855 (2005) (addressing empirical shortcomings of Richard Sander's study and predicting a substantial decline in the number of Blacks both entering the bar and enrolling at the nation's most selective law schools); Daniel E. Ho, Why Affirmative Action Does Not Cause Black Students to Fail the Bar, 114 YALE L.J. 1997 (2005) (demonstrating that affirmative action does not cause black student to fail the bar as Richard Sander argues by correcting the assumptions Sander relied on); Richard H. Sander, A Reply to Critics, 57 STAN. L. REv. 1963 (2005) (providing a rejoinder to critics of his argument that affirmative action in law school admissions serves to reduce the number of black lawyers); Richard H. Sander, A Systematic Analysis ofAffirmative Action in American Law Schools, 57 STAN. L. REv. 367 (2005) (providing an empirical critique of affirmative action in law school admissions and arguing that it serves to reduce the number of black lawyers); Richard H. Sander, Mismeasuring the Mismatch: A Response to Ho, 114 YALE L.J. 2005 (2005) (discred­ iting Ho's rebuttal of Sander's argument proposed in one of his earlier works that affirmative action in law schools serves to reduce the number of black lawyers). 338 See William C. Kidder, Does the LSAT Mirror or Magnify Racial and Ethnic Differ­ ences in Educational Attainment?: A Study ofEqually Achieving "Elite" College Students, 89 CAL. L. REv. 1055, 1058 (2001) (arguing that "racial and ethnic gaps on the LSAT are found to be larger than differences in undergraduate grades, law school grades or measures of subse­ quent success in the legal profession" and that this test bias may be rationale for affirmative action programs). 726 CORNELL JouRNAL OF LAW AND PUBLIC POLICY [Vol. 17:683

TABLE 2. NUMBER OF ARTICLES PUBLISHED ON RACE/ SOCIAL SCIENCE SCHOLARSHIP IN THE TOP TWENTY GENERAL LAW JOURNALS

JournalNear 1987-1991 1992-1996 1997-2001 2002-2006 Total Yale L. J. 0 0 0 4 4 Colum. L. Rev. 0 0 3 0 3 N.Y.U. L. Rev. 0 0 I I 2 Cornell. L. Rev. 2 0 0 0 2 Stan. L. Rev. 1 3 0 12* 16 Harv. L. Rev. 0 1 0 I 2 Cal. L. Rev. 0 1 I 8* 10 U. Chi. L. Rev. 0 1 0 0 1 UCLA L. Rev. 0 0 0 I 1 Nw. U. L. Rev. 0 0 0 1 1 Tex. L. Rev. 0 1 0 0 1 Wm. & Mary L. Rev. 0 0 0 1 1 Total 3 7 5 29 44 Note: An asterisk denotes a period where more than one noted journal article was part of a symposium. The analysis identified two symposia for the Stanford Law Review339 and one for the California Law Review.340

Analysis 4: Social Science, Race & Law and Race & Empirical Legal Scholarship Published in Race and Civil Rights Law Journals In the fourth analysis, I employed Washington and Lee Law School's journal ranking system to identify law journals on race or civil rights. 341 My first search was for civil rights journals; the search query was U.S., Human Rights and Civil Rights. My second search was for journals on race; the search query was U.S., Minority, Race and Ethnic Issues. For both searches, I searched for the most recent database up­ date, 2005, by impact-factor (IF). In order to focus on the top journals in both categories, I only selected those journals which were above the mean rank. This search yielded seven journals: Michigan Journal of Race & Law (founded in 1996); Boston College Third World Law Jour­ nal (founded in 1980); Law and Inequality (founded in 1983); Journal of Gender, Race and Justice (founded in 1997); Harvard Blackletter Law Journal (founded in 1984); N.Y.U. Review of Law and Social Change (founded in 1971); and Harvard Civil Rights-Civil Liberties Law Review (founded in 1966). I then conducted a Westlaw search of each journal, separately inputting each journal under "search these databases." For each journal, I employed the search terms employed "social scien!" em-

339 Freshman, Forward: Revisioning the Constellations, supra note 8. 340 Symposium, Behavioral Realism, 94 CAL. L. REv. 945 (2006). 341 Law Journals: Submissions and Rankings, supra note 313. 2008] TowARD A CRITICAL RACE REALISM 727 piric! quantitative Is race "African American" and restricted the dates to 1987 through 2006. The final searches were conducted in October of 2006. To ascertain whether the prior analyses located results not pro­ duced by this analysis, I perused the results from analyses one, two, and three. The actual results for this analysis include only those results that focused on race and had at least one-fourth of their textual content about social science, race and law, or race and empirical legal scholarship. Ad­ ditionally, if any utilized result was pa..-t of a symposium, the other sym­ posia articles were analyzed to determine if they, too, fit the aforementioned criteria. If they did, they also served as actual results for this analysis. These results are listed below. Journal articles with at least a designated section on social science, race and law, or race and empiri­ cal legal scholarship are footnoted. This analysis yielded four results. Between 1987 and 1996, the top race/civil rights law journals published no social science, race and law, or race and empirical legal scholarship law journal articles. 342 Between 1997 and 2001, they published only one social science, race and law, or race and empirical legal scholarship law journal article. This article criti­ qued reliance on cold numbers in law school admissions.343 Between 2002 and 2006, the top race/civil rights law journals published three so­ cial science, race and law, or race and empirical legal scholarship law journal articles. 344 These articles focused on affirmative action, 345 the degree to which inmates' Afro-centric features impact the length of their sentences,346 and unconscious racism. 347 Analysis 5: Social Science, Race and Law, and Race and Empirical Legal Scholarship Published in Interdiscipli­ nary, Social Science, and Law Journals

342 Five journal articles included sections dedicated to social science, race and law, or race and empirical legal scholarship. See generally Hernandez, supra note 326; Johnson, supra note 293, at 312-17 (describing the psychological dynamics of race and assessments of credi­ bility); Morant, supra note 326 (discussing the relationship between social psychology, race, and contract law); Ramirez, Cultural Diversity, supra note 326 (discussing cultural concep­ tions of race); Ramirez, New Cultural Diversity, supra note 326 (describing corporate diversity initiatives in response to Title VII). 343 See Brown-Nagin, supra note 305 (critiquing over-reliance on rigid LSAT scores in law school admission in the context of affirmative action). 344 One journal article included a section dedicated to social science, race and law, or race and empirical legal scholarship. See Vargas, supra note 329, at 131-37 (2004) (describing empirical studies exploring the relationship between judges' personal attributes such as race, political affiliations, and their rulings). 345 See Brian N. Lizotte, The Diversity Rationale: Unprovable, Uncompelling, 11 MICH. J. RACE & L. 625 (2006). 346 See William T. Pizzi et al., Discrimination in Sentencing on the Basis of Afrocentric Features, 10 MICH. J. RAcE & L. 327 (2005). 347 See Reshma J. Saujani, "The Implicit Association Test": A Measure of Unconscious Racism in Legislative Decision-Making, 8 MICH. J. RACE & L. 395 (2003). 728 CORNELL JoURNAL OF LAw AND PUBLIC POLICY [Vol. 17:683

In the fifth analysis, I identified interdisciplinary journals by em­ ploying the methodology Tracey George utilized in An Empirical Study of Empirical Legal Scholarship. 348 I selected journals based on the fol­ lowing criteria: the journal's subject matter must be law and a social science; the journal must be peer-reviewed; both law professors and so­ cial scientists must publish in the journal; both law professors and social scientists must serve as editors and referees; and the journal must also be part of a legal citation index or legal database. Each edition between 1987 and 2006 of every identified journal was searched via e-journals. Where an edition of the journal was not accessible electronically, I man­ ually searched the journal. The search terms were race, African Ameri­ can, and black. Where an abstract was provided, only the abstract was searched. The actual results for this analysis included only those results that focused on race and had at least one-fourth of their textual content about social science, race and law, or race and empirical legal scholar­ ship. Additionally, if any utilized result was part of a symposium, the other symposia articles were analyzed to determine if they, too, fit within the aforementioned criteria. If they did, they also served as actual results for this analysis. Only studies that focused on the United States and Ca­ nada were included in the analysis. The results are noted below. Journal articles with at least one designated section on social science, race and law, or race and empirical legal scholarship are footnoted. This analysis yielded 113 results. Between 1987 and 1991, the in­ terdisciplinary social science and law journals published nine social sci­ ence, race and law, or race and empirical legal scholarship articles. These articles focus on criminal justice,349 social control,350 and vot­ ing. 351 They also explore issues related to the judiciary,352 social science

348 See George, supra note 245, at 153-56. 3 4 9 See Nova) Morris, Race and Crime: What Evidence is There that Race Influences Results in the Criminal Justice System?, 72 JumcATURE 111 (1988) (assessing the role of race within the criminal justice system). 350 See Charles David Phillips, Exploring Relations Among Forms of Social Control: The Lynching and Execution of Blacks in North Carolina, 1889-1918, 21 LAW & Soc'y REv. 361 (1987) (exploring how various forms of aggression against blacks in the late 19th and early 20th centuries served as social controls). 351 See Arthur Lupia & Kenneth McCue, Why the 1980s Measures of Racially Polarized Voting Are Inadequate for the 1990s, 12 LAw & PoL'Y 353 (1990) (discussing a more effec­ tive way of analyzing racially polarized voting). 352 See Richard L. Engstrom, When Blacks Run for Judge: Racial Divisions in the Candi­ date Preferences of Louisiana Voters, 73 Juo,cATURE 87 (1989) (exploring racial differences in election of black judges); Cassia Spohn, The Sentencing Decisions of Black and White Judges: Expected and Unexpected Similarities, 24 LAw & Soc'y REv. I 197 (1990) (compara­ tively analyzing sentencing decisions by black and white judges). 2008] TowARD A CRITICAL RACE REALISM 729 in Supreme Court decisions,353 and affirmative action.354 Between 1992 and 1996, the interdisciplinary social science and law journals published twenty-three social science, race and law, or race and empirical legal scholarship articles. These articles focus on social science, race and law, generally, as well as355 antisocial behavior,356 juries,357 police,358 sen­ tencing,359 and capital punishment. 360 These articles also address issues

353 See Alan J. Tomkins & Kevin Oursland, Social and Social Scientific Perspectives in Judicial Interpretations of the Constitution: A Historical View and an Overview, 15 LAW & HuM. BEHAV. IOI (1991) (discussing the Court's use of social science in rendering decisions on difficult social issues). 354 See Rupert Barnes Nacoste, Sources of Stigma: Analyzing the Psychology of Affirma­ tive Action, 12 LAw & PoL'Y 175 (1990) (exploring the psychological implications of affirma­ tive action). 355 See Valerie P. Hans & Ramiro Martinez, Jr., Intersections of Race, Ethnicity, and the law, 18 LAw & HuM. BEHAV. 211 (1994) (providing a broad overview of social science research on race and law); Darnell F. Hawkins, Afterword, 18 LAW & HuM. BEHAV. 351 (1994) (providing a general summation on the intersection of social science, race, and law); Alan J. Tomkins, Introduction to This Issue: Race Discrimination, 10 BEHAV. Sci. & L. 151 (1992) (providing opening comment for a special issue on race and law). 356 See Dorothy L. Taylor et al., Racial Mistrust and Disposition to Deviance Among African American, Haitian, and Other Caribbean Island Adolescent Boys, 18 LAW & HUM. BEHAV. 291 (1994) (testing whether racial mistrust relates to a willingness among black boys to engage in delinquent behavior). 35 7 See Diedre Golash, Race, Fairness, and Jury Selection, 10 BEHAV. Sci. & L. 155 (1992) (exploring whether racial composition of juries increases fairness). 358 See Linda S. Gottfredson, Racially Gerrymandering the Content of Police Tests to Satisfy the U.S. Justice Department: A Case Study, 2 PsYCHOL. Pue. PoL'Y & L. 418 (1996) (analyzing how the effect of lowering police tests' merit relatedness in pursuit of race-based goals). 359 See James W. Meeker et al., Bias in Sentencing: A Preliminary Analysis of Community Service Sentences, 10 BEHAV. SCI. & L. 197 (1992) (exploring whether judges demonstrate racial bias in sentencing); Laura T. Sweeney & Craig Haney, The Influence of Race on Sen­ tencing: A Meta-Analytic Review of Experimental Studies, 10 BEHAV. SCI. & L. 179 (1992) (meta-analyzing the relationship between race and sentencing). 360 See Austin Sarai, Speaking ofDeath: Narratives of Violence in Capital Trials, 27 LAW & Soc'y REv. 19 (1993) (analyzing how legal discourse deals with violence and pain within the context of a cross-racial crime); Linda A. Foley, Florida After the Furman Decision: The Effect of Extralegal Factors on the Processing of Capital Offense Cases, 5 BEHAV. Sci. & L. 457 (1987) (exploring the existence of racial discrimination in capital sentencing); Jonathan R. Sorensen & Donald H. Wallace, Capital Punishment in Missouri: Examining the Issue of Ra­ cial Disparity, 13 BEHAV. SCI. & L. 61 (1995) (examining racial disparities in capital punishment). 730 CORNELL JOURNAL OF LAw AND PUBLIC POLICY [Vol. 17:683 such as affirmative action,361 employment discrimination,362 hate crimes,363 and dispute resolution.364 Lastly, they also tackle parental rights issues,365 development issues for poor women,366 politics,367 and regulation within the trucking industry.368 Between 1997 and 2001, the interdisciplinary social science and law journals published 42 social sci­ ence, race and law, or race and empirical legal scholarship articles. These articles focus on the judiciary,369 juries,370 eye-witness testi-

36! See Winfred Arthur, Jr. et al., Recipient's Affective Responses to Affirmative Action Interventions: A Cross-Cultural Perspective, 10 BEHAV. SCI. & L. 229 (1992) (exploring how cultural differences affect racial group differences about affirmative action); Susan D. Clayton, Remedies for Discrimination: Sex, Race and Affirmative Action, 10 BEHAV. SCI. & L. 245 (1992) (discussing affirmative action within the contexts of race versus sex); Richard B. Dar­ lington, On Race and Intelligence: A Commentary on Affirmative Action, the Evolution of Intelligence, the Regression Analyses in The Bell Curve, and Jensen's Two-Level Theory, 2 PsvcHoL. Pus. PoL'Y & L. 635 (1996) (discussing the link between race and intelligence in the contexts of affirmative action and evolution). 362 See Ramona L. Paetzold, Multicollinearity and the Use of Regression Analyses in Discrimination Litigation, 10 BEHAV. Sc1. & L. 207 (1992) (discussing the difficulty of ana­ lyzing regression models of employment discrimination). 363 See Phyllis B. Gerstenfeld, Smile When You Call Me That!: The Problems With Pun­ ishing Hate Motivated Behavior, 10 BEHAV. Sc1. & L. 259 (1992) (critiquing hate crime laws). 364 See E. Allan Lind et al., ... And Justice for All: Ethnicity, Gender, and Preferences for Dispute Resolution Procedures, 18 LAW & HuM. BEHAV. 269 (1994) (analyzing racial differences in dispute resolution preferences). 365 See Sandra T. Azar & Corina L. Benjet, A Cognitive Perspective on Ethnicity, Race, and Termination of Parental Rights, 18 LAw & HuM. BEHAV. 249 (1994) (examining racial bias in how judges and mental health professionals make parental rights determinations). 366 See Hope Lewis, Women (Under)Development: The Relevance of "The Right to De­ velopment" to Poor Women of Color in the United States, 18 LAW & PoL'Y 281 (I996) (com­ paring how various forms of development relate to poor women of color and non-western people). 367 See Tim R. Sass & Stephen L. Mehay, The Voting Rights Act, District Elections, and the Success of Black Candidates in Municipal Elections, 38 J.L. & EcoN. 367 (1995) (analyz­ ing the impact of district elections on the electoral success of black city council candidates). 368 See John S. Heywood & James H. Peoples, Deregulation and the Prevalence of Black Truck Drivers, 37 J.L. & EcoN. 133 (1994) (exploring the impact of trucking industry deregu­ lation on black driver prevalence). 369 See Shawn D. Bushway & Anne Morrison Piehl, Judging Judicial Discretion: Legal Factors and Racial Discrimination in Sentencing, 35 LAW & Soc'v Rev. 733 (2001) (analyz­ ing how judicial discretion impacts racial disparities in sentencing); Roger E. Hartley, A Look at Race, Gender, and Experience, 84 JUDICATURE 191 (2001) (analyzing how race may impact delay in judicial confirmation); Doris Marie Provine, Too Many Black Men: The Sentencing Judge's Dilemma, 23 LAw & Soc. INQUIRY 823 (1998) (analyzing how judges wrestle with the mass incarceration of black men). 370 See Mona Lynch & Craig Haney, Discrimination and Instructional Comprehension: Guided Discretion, Racial Bias, and the Death Penalty, 24 LAW & HuM. BEHAV. 337 (2000) (analyzing the lack of jury instruction comprehension on discriminatory death sentencing); Mary R. Rose, The Peremptory Challenge Accused of Race or Gender Discrimination? Some Data from One County, 23 LAW & HuM. BEHAV. 695 (1999) (analyzing how peremptory challenges in jury selection among the defense and prosecution differentially racially discrimi­ nate); Samuel R. Sommers & Phoebe C. Ellsworth, White Juror Bias: An Investigation of Prejudice Against Black Defendants in the American Courtroom, 7 PsYCHOL. Pus. PoL'Y & L. 201 (2001) (discussing racial attitudes held by White jurors). 2008] TowARD A CRITICAL RACE REALISM 731 mony,371 and prosecutorial discretion.372 They also explore criminal be­ havior,373 policing,374 sentencing,375 capital punishment,376 assessments

37! See Deborah Bartolomey, Cross-Racial Identification Testimony and What Not to Do About It: A Comment on the Cross-Racial Jury Charge and Cross-Racial Expert Identification Testimony, 7 PsYCHOL. Pua. PoL'Y & L. 247 (2001) (proposing testimony by cross-racial identification experts to ameliorate cross-racial identification evidence problems); James M. Doyle, Discounting the Error Costs: Cross-Racial False Alanns in the Culture of Contempo­ rary Criminal Justice, 7 PsYCHOL. Pua. PoL'Y & L. 253 (2001) (discussing how White eye­ witnesses mis-identify Blacks more often than they do Whites); Heather B. Kleider & Stephen D. Goldinger, Stereotyping Ricochet: Complex Effects of Racial Distinctiveness on Identifica­ tion Accuracy, 25 LAw & HuM. BEHAV. 605 (2001) (investigating how a black person's pres­ ence affects recognition accuracy for surrounding whites); Otto H. MacLin et al., Race, Arousal, Attention, Exposure, and Delay: An Examination of Factors Moderating Face Recog­ nition, 7 PsYCHOL. Pua. PoL'Y & L. 134 (2001) (testing the effect of distraction, arousal and time delay on face recognition of other ethnic groups); Otto H. MacLin & Roy S. Malpass, Racial Categorization of Faces: The Ambiguous Race Face Effect, 7 PsYCHOL. Pua. PoL'Y & L. 98 (200I) (analyzing the process of recognizing or mis-recognizing faces belonging to other races); Christian A. Meissner & John C. Brigham, Thirty Years of Investigating the Own-Race Bias in Memory for Faces: A Meta-Analytic Review, 7 PsYCHOL. Pua. PoL'Y & L. 3 (2001) (comparing recognition of faces belonging to one's own race with recognition of faces belong­ ing to other races); Steven M. Smith, R. C. L. Lindsay et al., Postdictors of Eyewitness Errors: Can False Identifications Be Diagnosed in the Cross-Race Situation?, 7 PsYCHOL. Pua. PoL'Y & L. 153 (2001) (comparing recognition of faces belonging to one's own race with recognition of faces belonging to other races); Siegfried Ludwig Sporer, Recognizing Faces of Other Eth­ nic Groups: An Integration of Theories, 7 PsYCHOL. Pua. PoL'Y & L. 36 (2001) (discussing comparative difficulty in distinguishing between faces in other ethnic groups); Siegfried Lud­ wig Sporer, The Cross-Race Effect: Beyond Recognition of Faces in the Laboratory, 7 PsYCHOL. Pus. PoL'Y & L. I70 (2001) (analyzing cross-race facial recognition through con­ sidering ethnic differences at all stages of a criminal investigation); Gary L. Wells & Elizabeth A. Olson, The Other-Race Effect in Eyewitness Identification: What Do We Do About It?, 7 PsYCHOL. Pus. PoL'Y & L. 230 (2001) (proposing a method to ameliorate cross-race facial identification problems); Daniel B. Wright et al., A Field Study of Own-Race Bias in South Africa and England, 7 PsYCHOL. Pua. PoL'Y & L. 119 (2001) (studying cross-race identifica­ tion in South Africa and England). 372 See Lisa Frohmann, Convictability and Discordant Locales: Reproducing Race, Class, and Gender Ideologies in Prosecutorial Decisionmaking, 31 LAW & Soc'y Rev. 531 (1997) (analyzing racial factors in prosecutors' discourse about sexual assault defendants' convictability). 373 See R. Barry Ruback & Paula J. Vardaman, Decision Making in Delinquency Cases: The Role of Race and Juveniles' Admission/Denial of the Crime, 21 LAW & HuM. BEHAV. 47 (I997) (analyzing racial differences in juvenile admission to crimes and how harshly admitters and deniers were treated); Eric Silver, Race, Neighborhood Disadvantage, and Violence Among Persons with Mental Disorders: The Importance of Contextual Measurement, 24 LAW & HUM. BEHAV. 449 (2000) (analyzing whether race is a significant predictor of violence among the mentally ill when accounting for neighborhood disadvantage). 374 See John J. Donohue III & Steven D. Levitt, The Impact of Race on Policing and Arrests, 44 J.L. & EcoN. 367 (2001) (examining the relationship between the racial composi­ tion of a police force and racial patterns of arrest). 375 See Bushway & Piehl, supra note 369; David B. Mustard, Racial, Ethnic, and Gender Disparities in Sentencing: Evidence From the U.S. Federal Courts, 44 J.L. & EcoN. 285 (2001) (examining the racial impact of the Sentencing Reform Act of 1984). 37 6 See Theodore Eisenberg et al., Forecasting life and Death: Juror Race, Religion, and Attitude Toward the Death Penalty, 30 J. LEGAL Snm. 277 (2001) (examining how race im­ pacts jurors' decisions about capital sentencing). 732 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 17:683 of truthfulness,377 and perceptions of the justice system.378 Moreover, they explore issues such as affirmative action,379 law student career out­ comes,380 and law firm diversity.381 Between 2002 and 2006, the inter­ disciplinary social science and law journals published thirty-nine social science, race and law, or race and empirical legal scholarship articles. These articles focus on discrimination generally,382 unconscious ra-

377 See Charles L. Ruby & John C. Brigham, Can Criteria-Based Content Analysis Dis­ tinguish Between True and False Statements ofAfrican American Speakers?, 22 LAW & HuM. BEHAV. 369 (1998) (attempting to generalize a technique for assessing truthfulness to Blacks). 378 See Richard R. W. Brooks & Haekyung Jeon-Slaughter, Race, Income, and Percep­ tions ofthe U.S. Court System, 19 BEHAV. Sc1. & L. 249 (2001) (discussing Blacks' perception of the courts across income levels); Tom R. Tyler, Public Trust and Confidence in Legal Authorities: What Do Majority and Minority Group Members Want from Law and Legal Insti­ tutions?, 19 BEHAV. Sc1. & L. 215 (2001) (presenting a procedural, justice-based model link­ ing public confidence and trust to views about how legal authorities treat the public); Ronald Weitzer, Racialized Policing: Residents' Perceptions in Three Neighborhoods, 34 LAw & Soc'y Rev. 129 (2000) (examining individuals' perceptions of racialized police tactics); De­ ane C. Wiley, Black and White Differences in the Perception of Justice, 19 BEHAV. Sc1. & L. 649 (2001) (exploring racial differences in attitudes about the justice system); Scot Wortley et al., Just Des(s)erts? The Racial Polarization of Perceptions of Criminal Injustice, 31 LAW & Soc'y REv. 637 (1997) (examining how extensive media coverage of an interracial crime influences public perception about the criminal justice system). 379 See Jean-Pierre Benoit, Color Blind Is Not Color Neutral: Testing Differences and Affirmative Action, 15 J.L. EcoN. & ORG. 378 (1999) (arguing that color blind policies serve to undermine racial progress); Keith J. Bybee, The Political Significance ofLegal Ambiguity: The Case ofAffirmative Action, 34 LAW & Soc'y Rev. 263 (2000) (critiquing the Court's affirma­ tive action jurisprudence); Douglas K. Detterman, Tests, Affirmative Action in University Ad­ missions, and the American Way, 6 PsYCHOL. Pua. Po1.'y & L. 44 (2000); Theodore Eisenberg, An Important Portrait of Affirmative Action, I AM. L. & EcoN. REv. 471 (1999) (analyzing affirmative action in university admissions); Howard T. Everson, A Principled De­ sign Framework for College Admissions Tests: An Affirming Research Agenda, 6 PsYCHOL. Pua. Po1.'y & L. 112 (2000); Linda S. Gottfredson, Skills Gaps, Not Tests, Make Racial Pro­ portionality Impossible, 6 PsYCHOL. Pua. Po1.'y & L. 129 (2000); Diane F. Halpern, Validity, Fairness, and Group Differences: Tough Questions for Selection Testing, 6 PsYCHOL. Pua. Po1.'y & L. 56 (2000); Robert Perloff & Fred B. Bryant, Identifying and Measuring Diversity's Payoffs: Light at the End of the Affirmative Action Tunnel, 6 PsYCHOL. Pua. Po1.'y & L. 101 (2000); Cecil R. Reynolds, Why is Psychometric Research on Bias in Mental Testing So Often Ignored?, 6 PsYCHOL. Pua. Po1.'y & L. 144 (2000); Matthew H. Scullin et al., The Role of IQ and Education in Predicting Later Labor Market Outcomes: Implications for Affirmative Ac­ tion, 6 PsYCHOL. Pua. Po1.'y & L. 63 (2000); Linda F. Wightman, The Role of Standardized Admission Tests in the Debate About Merit, Academic Standards, and Affirmative Action, 6 PsYCHOL. Pua. Po1.'y & L. 90 (2000); Wendy M. Williams, Perspectives on Intelligence Test­ ing, Affirmative Action, and Educational Policy, 6 PsYCHOL. Pua. Po1.'y & L. 5 (2000). 380 See Richard 0. Lempert et al., Michigan's Minority Graduates in Practice: The River Runs Through Law School, 25 LAW & Soc. INQUIRY 395 (2000) (comparing minority and white law school alumni on career outcomes). 38I See Elizabeth Chambliss & Christopher Ugen, Men and Women in Elite Law Firms: Reevaluating Kanter's Legacy, 25 LAW & Soc. INQUIRY 41 (2000) (exploring the effect of minority partner representation on minority associate representation at elite law firms). 382 See Steven D. Levitt, Testing Theories of Discrimination: Evidence from Weakest Link, 47 J.L. & EcoN. 431 (2004) (analyzing game show participation to discern modes of discrimination). 2008] TowARD A CRITICAL RACE REALISM 733

cism,383 intelligence testing,384 Brown v. Board's legacy,385 affirmative action,386 and success in law school.387 They also focus on the judici-

3 8 3 See Sandra Graham & Brian S. Lowery, Priming Unconscious Racial Stereotypes About Adolescent Offenders, 28 LAW & HuM. BEHAV. 483 (2004) (analyzing the effect of unconscious racial stereotype priming on police officers' and probation officers' attitudes about adolescent offenders). 384 See Richard E. Nisbett, Heredity, Environment, and Race Differences in IQ: A Com­ mentary on Rushton and Jensen (2005), 11 PsYCHOL. Pue. PoL'Y & L. 311 (2005); J. Philippe Rushton & Arthur R. Jensen, Thirty Years ofResearch on Race Differences in Cognitive Abil­ ity, 11 PsYCHOL. Pue. PoL'Y & L. 235 (2005); J. Philippe Rushton & Arthur R. Jensen, Wanted: More Race Realism, Less Moralistic Fallacy, 11 PsYCHOL. Pue. PoL'Y & L. 328 (2005); Robert J. Sternberg, There Are No Public-Policy Implications: A Reply to Rushton and Jensen, 11 PsYCHOL. Pue. PoL'Y & L. 295 (2005); Lisa Suzuki & Joshua Aronson, The Cul­ tural Malleability of Intelligence and Its Impact on the Racial/Ethnic Hierarchy, 11 PsYCHOL. Pue. PoL'Y & L. 320 (2005). 385 See Orley Ashenfeler et al., Evaluating the Role of Brown v. Board of Education in School Equalization, Desegregation, and Income in African Americans, 8 AM. L. & EcoN. REv. 213 (2006); Richard R. W. Brooks, Diversity and Discontent: The Relationship Between School Desegregation and Perceptions ofRacial Justice, 8 AM. L. & EcoN. REV. 410 (2006); Charles T. Clotfelter et al., Federal Oversight, Local Control, and the Specter of "Resegrega­ tion" in Southern Schools, 8 AM. L. & EcoN. REV. 347 (2006); Roland G. Fryer, Jr. & Steven D. Levitt, The Black-White Test Score Gap Through Third Grade, 8 AM. L. & EcoN. REv. 249 (2006); Thomas J. Kane et al., School Quality, Neighborhoods, and Housing Prices, 8 AM. L. & EcoN REv. 183 (2006); Alan Krueger et al., Race, Income, and College in 25 Years: Evaluating Justice O'Connor's Conjecture, 8 AM. L. & EcoN REv. 282 (2006); Douglas S. Massey, Social Background and Academic Performance Differentials: White and Minority Students at Selective Colleges, 8 AM. L. & EcoN. REv. 390 (2006); Paul E. Sum et al., Race, Refonn, and Desegregation in Mississippi Higher Education: Historically Black Institutions After United States v. Fordice, 29 LAW & Soc. INQUIRY 403 (2004) (exploring racial integra­ tion at historically black colleges and universities); Marta Tienda & Sunny Xinchun Niu, Capi­ talizing 011 Segregation, Pretending Neutrality: College Admission and the Texas Top 10% Law, 8 AM. L. & EcoN. REv. 312 (2006). 386 See Richard A. Epstein, Of Same Sex Relationships and Affirmative Action: The Cov­ ert Libertarianism of the United States Supreme Court, 12 SuP. CT. EcoN. REv. 75 (2004) (comparing judicial standards applied to cases involving homosexuality and affirmative action). 387 See Timothy T. Clydesdale, A Forked River Runs Through Law School: Toward Un­ derstanding Race, Gender, Age, and Related Gaps in Law School Performance and Bar Pas­ sage, 29 LAW & Soc. INQUIRY 711 (2004) (analyzing the impact of stigmatization on minority student success in law school). 734 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 17:683 ary388 and juries.389 In addition, these articles address sentencing,390 capital sentencing,391 psychopathy,392 perceptions of justice and crime

388 See Max Schanzenbach, Racial and Sex Disparities in Prison Sentences: The Effect of District-Level Judicial Demographics, 34 J. LEGAL STUD. 57 (2005) (analyzing the effect of judicial characteristics, such as race, on prison sentencing ); Christopher E. Smith & Thomas R. Hensley, Decision-Making Trends of the Rehnquist Court Era: Civil Rights and Liberties Cases, 89 JumcATURE 161 (2005) (analyzing the Rehnquist Courts rulings in civil rights and civil liberties cases). 389 See Jordan Abshire & Brian H. Bornstein, Juror Sensitivity to the Cross-Race Effect, 27 LAw & HuM. BEHAY. 471 (2003) (analyzing jurors' sensitivity to the cross-race effect as determined by the race of eye-witnesses); Thomas W. Brewer, Race and Jurors' Receptivity to Mitigation in Capital Cases: The Effect of Jurors', Defendants' and Victims' Race in Combi­ nation, 28 LAw & HuM. BEHAY. 529 (2004) (examining receptivity to mitigation evidence by capital jurors as it varies by race of juror, defendant, and victim); Tara L. Mitchell et al., Racial Bias in Mock Juror Decision-Making: A Meta-Analytic Review of Defendant Treat­ ment, 29 LAW & HuM. BEHAV. 621 (2005) (analyzing out-group bias in jury decisionmaking). 390 See Schanzenbach, supra note 388; John Wooldredge et al., (Un)Anticipated Effects of Sentencing Reform on the Disparate Treatment of Defendants, 39 LAW & Soc'v REv. 835 (2005) (examining how determinate sentencing impacts case outcomes across race). 391 See John Blume et al., Explaining Death Row's Population and Racial Composition, I J. EMPIRICAL LEGAL STUD. 165 (2004) (explaining that reluctance to seek death in Black-on­ Black crimes accounts for the fact that Blacks represent disproportionately fewer death row inmates); Benjamin Fleury-Steiner, Narratives of the Death Sentence: Toward a Theory of Legal Narrativity, 36 LAW & Soc'v REv. 549 (2002) (analyzing how death penalty trial ju­ rors' consciousness is racialized). 39 2 See Jennifer L. Skeem et al., Are There Ethnic Differences in Levels of Psychopathy?: A Meta-Analysis, 28 LAW & HuM. BEHAV. 505 (2004) (assessing whether blacks and whites significantly differ on core psychopathic traits). 2008] TowARD A CRITICAL RACE REALISM 735 control,393 and hate crimes.394 Lastly, they cover racial passing,395 polit­ ics,396 and tort awards. 397 Analysis 6: Emerging Social Science, Race and Law, and Race and Empirical Legal Scholarship In the sixth analysis, I searched the Legal Scholarship Network of the Social Science Research Network (SSRN)398 for papers focused on social science, race and law, or race and empirical legal scholarship. Consecutively, I employed each of the following search terms: social science and race; social science and African American; empirical and race; empirical and African American; quantitative and race; and quanti­ tative and African American. I searched the abstract for these terms and restricted my search to the past year. Only those papers that were written by law faculty or published legal working paper groups were selected in the search. Furthermore, in October of 2006, the inaugural Empirical Le­ gal Scholarship was held at the University of Texas.399 The papers from this conference are available at SSRN.400 Therefore, I searched each of these articles and selected those that focused on issues of race. The search yielded thirteen results. These pa-

393 See Angela P. Cole & Ewart A. C. Thomas, Group Differences in Fairness Percep­ tions and Decision Making in Voting Rights Cases, 30 LAW & HuM. BEHAV. 543 (2006) (analyzing how racial differences affected perceptions of fairness and decisions regarding vot­ ing rights cases); Eva G. T. Green et al., Symbolic Racism and Whites' Attitudes Towards Punitive and Preventive Crime Policies, 30 LAw & HuM. BEHAV. 435 (2006) (analyzing deter­ minants of whites' punitive and preventive crime policy support); L. Marvin Overby et al., Justice in Black and White: Race, Perceptions of Fairness, and Diffuse Support for the Judi­ cial System in a Southern State, 25 JusT. SYs. J. 159 (2004) (exploring racial differences in attitudes about a state judicial system). 394 See Dhammika Dharmapala & Nuno Garoupa, Penalty Enhancement for Hate Crimes: An Economic Analysis, 6 AM. L. & EcoN. REv. 185 (2004) (providing an economic analysis of penalty enhancements for bias crimes); Megan Sullaway, Psychological Perspectives of Hate Crime Laws, 10 PsYCHOL. Pue. PoL'Y & L. 250 (2004). 395 Mark Golub, Plessy as "Passing": Judicial Responses to Ambiguously Raced Bodies in Plessy v. Ferguson, 39 LAw & Soc'y REv. 563 (2005) (analyzing Plessy as a story about racial passing). 396 See Allan J. Lichtman, What Really Happened in Florida's 2000 Presidential Elec­ tion, 32 J. LEGAL STUD. 221 (2003) (analyzing black voter suppression in Florida during the 2000 presidential election); John R. Lott, Jr., Nonvoted Ballots and Discrimination in Florida, 32 J. LEGAL STUD. 181 (2003) (analyzing black voter suppression in Florida during the 2000 presidential election); Thomas J. Miles, Felon Disenfranchisement and Voter Turnout, 33 J. LEGAL STUD. 85 (2004) (examining felon disenfranchisement's impact on state-level voter turnout of black men). 397 See Eric Hellan & Alexander Tabarokk, Race, Poverty, and American Ton Awards: Evidence from Three Data Sets, 32 J. LEGAL STUD. 27 (2003) (investigating the impact of jury pool's race on trial awards). 398 Legal Scholarship Network Information Page, http://www.ssrn.com/lsn/index.html (last visited December 22, 2006). 399 First Annual Conference on Empirical Legal Studies, supra note 258. 400 Social Science Research Network, supra note 258. 736 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 17:683

TABLE 3. RACE SCHOLARSHIP IN INTERDISCIPLINARY SOCIAL SCIENCE AND LAW JOURNALS

1987-1991 1992-1996 1997-2001 2002-2006 Total Am. L. & Econ Rev. 0 I 0 9* IO Behav. Sci. & L. 1 9* 3 0 13 J. Empirical Legal Stud. 0 0 0 I I J. Legal Stud. 0 I I 5 7 J.L. & Econ. 0 2 2 I 5 J.L. Econ. & Org. 0 0 0 I I Judicature 2 0 2 I 5 Just. Sys. J. 0 0 0 I I Law & Hum. Behav. I 6 6 7 20 Law & Pol'y 3 1 0 0 4 Law & Soc'y Rev. 2 1 5 3 II Law & Soc. Inquiry 0 0 3 2 5 Psycho!. Pub. Pol'y & L. 0 2 20* 7* 29 Sup. Ct. Econ. Rev. 0 0 0 I I Total 9 23 42 39 113 Note: An asterisk denotes a period where more than one noted journal article was part of a symposium. pers explore such topics as school segregation,401 affirmative action,402 health care,403 tax law,404 and law and economics.405 Other articles fo-

4 0 I See Nancy Levit, Embracing Segregation: The Jurisprudence of Choice and Diversity in Race and Sex Separatism in Schools, 2005 U. ILL. L. REv. 455 (2005). 402 See Barnes, supra note 258; Paul J. Beard, The Legacy of Grutter: How the Meredith and P/CS Courts Wrongly Extended the 'Educational Benefits' Exception to the Equal Protec­ tion Clause in Public Higher Education (Pac. Legal Found., Working Paper No. 06-003, 2006), available at http://ssm.com/abstract=924436; Sean A. Pager, Who's In and Who's Out? Confronting the 'Who Question' in Affirmative Action: Can We Learn from India's Answer? (Ind. Legal Stud., Research Paper No. 50, 2006), available at http://ssm.com/abstract=890317. 4 03 See Jonathan D. Kahn, From Disparity to Difference: How Race-Specific Medicines May Undermine Policies to Address Inequalities in Health Care, 15 S. CAL. INTERDISC. L.J. 105 (2005). 404 See Jennifer Jolly-Ryan, Teed off About Private Club Discrimination on the Taxpay­ ers' Dime: Tax Exemptions and Other Government Privileges to Discriminatory Private Clubs (Mar. 20, 2006) (unpublished manuscript), available at http://ssm.com/abstract=894335. 405 See John J. Donohue, The Law and Economics of Antidiscrimination Law (Nat'! Bu­ reau of Econ. Research, Working Paper No. W11631, 2005), available at http://ssm.com/ab­ stract=8l2005. 2008] TowARD A CRITICAL RACE REALISM 737

cused on implicit racial bias,406 risk perception,407 crime perception,408 the death penalty,409 and jury selection.410 Analysis Conclusions The collective results of these analyses indicate several things: De­ spite some interest in recent years, Critical Race Theory founders have not employed much social science or empirical methods in their scholar­ ship. Much of the research in this area has been conducted by non-Criti­ cal Race Theorists. In fact, it also seems that most of this scholarship is produced by white law faculty, though this is admittedly mere specula­ tion. These faculty members are largely at nine of the top twenty law schools. In particular, Ian Ayres and Richard Brooks at Yale, Linda Hamilton Krieger at Boalt, and Gary Blasi and Jerry Kang at UCLA have published multiple articles in this area. As such, the social science, race, and law scholarship as well as the race and empirical legal scholarship of professors currently at these nine law schools have grown considerably in the past five years. When comparing law journals, much of this scholarship appears in the top general law reviews as opposed to specialized race and law or civil rights journals. This could be due to the hierarchical nature of legal academic publishing. Within these journals, there has been a progression in the number of articles published with a significant up-tick in the past five years. This is in part due to several symposia on social science, race, and law issues during this period. Thus, the symposia on affirmative ac­ tion in law school admissions and book reviews of Pervasive Prejudice and Crossroads, Directions, and a New Critical Race Theory in the Stan­ ford Law Review and the symposium on behavioral realism in the Cali­ fornia Law Review account for the drastic jump in the number of articles that intersect social science, race, and law or explore race and law issues empirically over the past five-year period.

406 See Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decision-Making and Misremembering (Aug. 2006), (unpublished manuscript), available at http://ssm.com/ab­ stract=927547. 4 07 See Dan M. Kahan et al., Gender, Race, and Risk Perception: The Influence of Cul­ tural Status Anxiety (Aug. 2006) (unpublished manuscript, available at http://ssm.com/ab­ stract=72376 2). 408 See Jeremy A. Blumenthal, Perceptions of Crime: A Multidimensional Analysis with Implications for Law and Psychology, 38 McGEORGE L. REv. 629 (2007). 409 See Michael J. Songer & Isaac Unah, The Effect of Race, Gender, and Location on Prosecutorial Decision to Seek the Death Penalty in South Carolina, 58 S.C. L. REv. 161 (2006); Jeremy A. Blumenthal, Implicit Theories and Capital Sentencing: An Experimental Study (2006) (unpublished manuscript, available at http://ssm.com/abstract=909603. 410 See Samuel R. Sommers & Michael I. Norton, Race-Based Judgments, Race-Neutral Justifications: Experimental Examination ofPeremptory Use and the Batson Challenge Proce­ dure, 31 LAW & HuM. BEHAV. 261 (2007). 738 CORNELL JouRNAL OF LAW AND PUBLIC POLICY [Vol. 17:683

Despite the noticeable growth in social science, race, and law schol­ arship as well as race and empirical legal scholarship published in law reviews, the real impact in this area is seen in interdisciplinary social science and law journals. Three times as many articles have been pub­ lished in these journals when compared to law reviews and journals. Within interdisciplinary journals there has been a steady progression in the number of articles published, particularly during the past ten years. Psychology and law journals-Psychology, Public Policy & Law as well as Law and Human Behavior-have been the biggest outlets. The latter publishes articles across multiple disciplines but is the official journal of Division 41, the American Psychology-Law Society, of the American Psychological Association. This is partially accounted for by the sympo­ sia in Psychology, Public Policy, & Law on race, juries, and eye-witness testimony as well as one on race and intelligence testing. The articles published by these academics and within these journals cover an array of topics. Some of the more popular issues addressed in­ clude antidiscrimination law, Brown v. Board of Education's legacy, and affirmative action especially within the context of law school admissions. What I term legal actors and participants-judges, juries, and eye wit­ nesses-were also well covered vis-a-vis other topics. Two fairly new topics also emerged. Law and economics applied to race issues as well as unconscious racism as assessed by the Implicit Association Test were two areas of growing interest.

2. An Integrative Model As I noted, Critical Race Realism is a synthesis of Critical Race Theory, empirical social science, and public policy. Such an integrative approach is nothing new. Charles Houston employed social science in a litigation strategy as a means to legally end school segregation which in tum had policy reverberations.411 Contemporarily, law professors have also demonstrated growing interest in the intersection of race and social science.412 Thus, my contention is simply that Critical Race Theorists should employ empirical modes of understanding race and racism among legal actors and within legal institutions and doctrine more often. Quite possibly, it should be the dominant strand of critical race scholarship. Critical Race Theorists may argue any of the conventional points against engaging in empirical research. 413 Additionally, they may also

411 See Michael Heise, Litigated Leaming and the Limits of Law, 57 VAND. L. REv. 2417, 2446-56 (2004) (discussing the rise of policy litigation after Brown v. Board of Education). 412 See infra Part II.B.l, Analysis 2. 413 See Peter H. Schuck, Why Don't Law Professors Do More Empirical Research?, 39 J. LEGAL Eouc. 323, 331-33 (1989) (indicating that inconvenience, lack of control, tedium, un­ certainty, ideology, resources, time, tenure, and training may all be arguments law faculty use against engaging in empirical legal scholarship). 2008] TowARD A CRITICAL RACE REALISM 739 make arguments, more particular to Critical Race Theory, against synthe­ sizing Critical Race Theory and empirical legal scholarship. First, quite like · their Critical Legal Studies predecessors, Critical Race Theory scholars insist that facts are irrelevant, maybe even pretextual, to judicial decision outcomes.414 Employing statistical data supports the idea that such data is neutral and objective. To employ such a social scientific approach is fundamentally antithetical to Critical Race Theory doctrine. Second, privileging numbers undermines the power of narrative, a cen­ tral Critical Race Theory methodology.415 My attempt is not to cast aside one of the dominant strands of criti­ cal race scholarship-narrative. I concur wholeheartedly with Richard Delgado's analysis that, [t]he stories of outgroups aim to subvert the ingroup re­ ality. In civil rights, for example, many in the majority hold that any inequality between blacks and whites is due either to cultural lag, or inadequate enforcement of currently existing beneficial laws-both of which are easily correctable. For many minority persons, the prin­ cipal instrument of their subordination is neither of these. Rather, it is the prevailing mindset by means of which members of the dominant group justify the world as it is, that is, with whites on top and browns and blacks on the bottom. Stories, parables, chronicles, and narratives are powerful means for destroying mindset-the bundle of presuppositions, received wisdoms, and shared understandings against a background of which legal and polit­ ical discourse takes place.416 In a nutshell, narrative is a rich descriptive method. When engaged in, it may serve as a cathartic tool for the narrator.417 It may also allow "the other" to gain a sense of perspective,418 maybe even empathy. 419 However, narrative has its share of weaknesses-ones that would be substantially buttressed if employed in conjunction with empiricism. As noted by Daniel Farber and Suzanna Sherry, there are concerns about the

414 See id. at 326. 415 See Dorothy A. Brown, Fighting Racism in the Twenty-First Century, 61 WASH. & LEE L. REv. 1485, 1488-89 (2004). 416 Richard Delgado, Storytelling for Oppositionists and Others: A Plea for Narrative, 87 M1cH. L. REv. 2411, 2413 (1988). 417 Id. at 2437. 418 See id. at 2437-38. 419 Toni M. Massaro, Empathy, Legal Storytelling, and the Rule of Law: New Words, Old Wounds?, 87 M1cH. L. REv. 2099, 2105 (1989). 740 CORNELL JouRNAL OF LAw AND PusLic PoLicY [Vol. 17:683

validity of narratives.420 This is likely to be particularly so among those nai"ve about issues of race or those who are outright antagonists to the Critical Race Theory agenda-racial progress. Farber and Sherry cite four validity concerns. The first is that fictional narrative creates a "spurious aura of empirical authority."421 The second deals with the de­ gree to which the narrative is truthful.422 Similarly, the third focuses on the difficulty of actually discerning if truth is being spoken-a method­ ological issue.423 Finally, the fourth concern is the degree to which the narrative account is representative of any population of people.424 Indeed it is quite possible to be both critical and empirical.425 More­ over, the benefits of synthesizing Critical Race Theory with empirical legal scholarship are manifold. First, empirical legal scholarship methods allow for theory development, empirical testing, and theory refine­ ment. 426 Furthermore, employing empirical research methods leads to "fairly" objective knowledge, which is "relatively" unfettered by per­ sonal prejudices.427 Additionally, empirical methods have the "propen­ sity to sharpen our focus on the normative questions that may be concealed by factual complexity and by the willingness of [some] to avoid responsibility for [their] value choices."428 For example, though empirical research may impact powerful people's attitudes and actions, such individuals also have "defenses to ward off offensive or inconve­ nient knowledge."429 However, when an individual or an institution can no longer employ empirical uncertainties to continue to engage in con­ scious or unconscious racist conduct, they must ultimately state their nor­ mative preferences.430 Second, it has long been noted that empirical legal scholarship is of value to Critical Race Theory. Derrick Bell noted that "empiricism is a crucial aspect of Racial Realism. By taking into consideration the abys­ mal statistics regarding the social status of black Americans, their op-

420 See Daniel A. Farber & Suzanna Sherry, Telling Stories Out of School: An Essay on Legal Narratives, 45 STAN. L. REv. 807, 830-40 (1993). 421 See id. at 831-32. 422 See id. at 832-35. 423 See id. at 835-38. 424 See id. at 838-40. 425 See David M. Trubek & John Esser, "Critical Empiricism" in American Legal Stud­ ies: Paradox, Program, or Pandora's Box?, 14 LAW & Soc. !.NQUIRY 3 (1989). 426 See Thomas S. Ulen, The Unexpected Guest: Law and Economics, Law and Other Cognate Disciplines, and the Future of Legal Scholarship, 79 CHI.-KENT L. REv. 403, 428 (2004). 427 Gregory Mitchell, Empirical Legal Scholarship as Scientific Dialogue, 83 N.C. L. REv, 167, 180-82 (2004). 428 Schuck, supra note 413, at 335. 429 Stewart Macaulay, The New Versus the Old Legal Realism: "Things Ain't What They Used to Be," 2005 Wisc. L. REv. 365, 397 (2005). 430 Schuck, supra note 413, at 335. 2008] TowARD A CRITICAL RACE REALISM 741 pression is validated."431 As such, empirical legal scholarship can be a more useful tool in highlighting racial disparities in the law's application vis-a-vis traditional case analysis. 432 As such, it allows Critical Race Theorists to reach out to individuals who are less willing to accept a central principle of Critical Race Theory-that people of color are subor­ dinated in America. This is done by revealing that although blatant ra­ cism may be significantly diminished in America, unconscious racism exists and still adversely impacts the lives of Blacks and other people of color.433 As Karl Llewellyn noted, "[W]e need improved machinery for making the facts about such effects - or about needs and conditions to be affected by a decision - available to the courts."434 Empirical social sci­ ence is just such machinery. With these factors in mind, an empirical analysis of race and law issues has some general yet substantive benefits. These benefits are evinced whether empirical methodology is employed alone or in con­ junction with the narrative approach. Furthermore, these benefits speak directly to the concerns raised by Farber and Sherry. First, empiricism bolsters claims made by theory or personal narrative. Second, empiricism provides a method to determine how true a theory or narrative is. This may be less so in determining how accurate an individual's personal ac­ count of racism is, but it speaks to Farber and Sherry's final validity concern. Empiricism allows one to test the degree to which theory or a personal account of reality is true for others. Where it is generalizable, especially for a vast number of similarly situated individuals, public pol­ icy may be implicated.435 Thus, the third benefit of synthesizing empirical legal scholarship and Critical Race Theory should be concerned with, what Robert Sum­ mers described as pragmatic instrumentalism-a means-end relationship to law.436 Legal scholarship, more readily than any other type of re-

431 Bell, supra note 10, at 365. 4 3 2 See Tanya Kateri Hernandez, A Critical Race Feminism Empirical Research Project: Sexual Harassment & the Internal Complaints Black Box, 39 U.C. DAVIS L. REV. 1235, 1239 (2006). 433 See Dorothy A. Brown, Fighting Racism in the Twenty-First Century, 61 WASH. & LEE L. REv. 1485, 1489-91 (2004). 434 Llewellyn, supra note 76, at 1254. 435 See Farber & Sherry, supra note 420, at 838. 436 SUMMERS, supra note 42, at 20. Summers' theory of Pragmatic lnstrumentalism is quite analogous to Legal Realism and argues three points: "First, it conceives the primary task of legal theory to be the provision of a coherent body of ideas about law which will make law more valuable in the hands of officials and practical men of affairs .... Second, a theory of this type is instrumentalist in its view that legal rules and other forms of law are most essen­ tially tools devised to serve practical ends .... Third, the type of legal theory treated and developed here is also distinctive in its focus on the instrumental facets of legal phenomena, including: the nature, variety, and complexity of the goals law may serve; law's implementive 742 CORNELL JOURNAL OF LAw AND PUBLIC POLICY [Vol. 17:683 search, has the potential to shape public policy.437 In this vein, the bene­ fit of Critical Race Theory's employment of social science is that social science may help shape courts', legislatures', and administrative agen­ cies' policy decisions.438 Policy goals, and the best methods for pursuing them, necessitate data about the "policies and about empirical assump­ tions underlying the policies and about the likely effect of various routes for achieving them."439 Social science can provide those data.440 As such, law must be seen as both a response to social needs and as having an impact on social issues.441 Charles Houston's efforts at Howard Law School, to create a "laboratory for civil rights and a nursery for civil rights lawyers,"442 demonstrates an effort to create such policy-chang­ ers-social engineers. Both practicing attorneys443 and law professors444 have demonstrated a long history of serving as such social engineers. Thus, legal policy may be shaped by a number of actors, involve substan­ tive or procedural law, and relate to public or private law.445 The legal scholar, legal policymaker, or practicing lawyer may shape public pol­ icy.446 A legal academic may employ social science through his re­ search,447 by providing a more systematic approach to understanding the role of race within the legal system. A legal policymaker may employ social science in two ways, either procedurally or substantively.448 Pro­ cedurally, she may employ social science to get the legislature or courts to function in a more racially fair manner. Substantively, the policymaker may employ social science to look at the underlying racial fairness of a machinery; the kinds of means-goal relationships in the law; the variety of legal tasks that officials must fulfill to translate law into practice, the efficacy of Jaw; and its limits." Id. 437 See Lee Epstein & Gary King, The Rules of Inference, 69 U. CHI L. REv. I, 8 (2002). 438 See Richard Lempert, "Between Cup and Lip": Social Science Influences on Law and Policy, 10 LAW & PoL'Y 167, 170-75 (1988); see also Warren, supra note 242, at 7 (high- lighting "the growing number of corporations and lobbying groups paying to produce such data for use in lobbying legislatures and influencing public opinion"). 4 39 Gary B. Melton et al., Psychologists as Law Professors, 42 AM. PSYCHOLOGIST 502, 502 (1987). 440 See id. 441 See WILLIAM C. LOUTHAN, THE PoLITics OF JusTicE: A STUDY IN LAW, SOCIAL Sci. ENCE, AND PuBLIC POLICY (1979). 442 AUERBACH, supra note 62, at 212. 443 Gerald Lawrence Fetner, Counsel to the Situation: The Lawyer as Social Engineer, 1900-1945, at 42-82 (1973) (unpublished Ph.D. dissertation, Brown University) (on file with John Hay Library, Brown University). 444 Id. at 83-126. 445 See STUART NAGEL & LISA BIEVENUE, SocIAL SCIENCE, LAw, AND PueLic POLICY 5-6 (1992). 446 See id. at 35. 447 See id. at 40-41. 448 See id. at 38-39. Procedurally, the authors actually focus on the efficiency and effec­ tiveness of the policymaking entity. Substantively, the authors focus on the underlying sound­ ness of a rule of law. 2008] TowARD A CRITICAL RACE REALISM 743 rule of law. A practicing lawyer may employ social science by introduc­ ing it into evidence to advance certain arguments in a case.449 Ultimately, the challenge to the broader goal of using social science to shape public policy with regards to race may not be whether it would be effective but rather where it would be most effective. For example, judges may not be well-suited to understand the significance of the social science evidence.45° Courts are not well-equipped to respond to changes in the social science literature.451 Social science evidence, once accepted as persuasive by courts, becomes precedent.452 Such precedent becomes difficult to alter when additional research changes the conclusions of pre­ vious social science.453 However, legislators can adapt to changes in so­ cial science much faster than courts.454 This is because "legislators are more frequently the site of decision-making on controversial issues on which social scientists seek to present evidence, and legislators do not have to wait for live controversy to pres~nt itself before addressing such issues. "455

3. Creating a Critical Race Realism A number of legal actors could be deemed critical race realists. Law professors, however, may be in the best position to actually formulate a Critical Race Realism agenda. This is largely because law professors can best produce Critical Race Realism scholarship. Nevertheless, they are not trained to be effective empirical legal scholars. There are a few rea­ sons for this. First, law schools are not particularly good at teaching its students, some of whom go on to be law professors, how to systemati­ cally "find, interpret, prove, and rebut" facts. 456 Second, social scientists are taught to subject their hypotheses to "every conceivable test and data source," in attempt to disconfirm the theory.457 However, a lawyer at­ tempts to marshal all possible evidence in support of her hypothesis and "distract attention" from any possible contradictory information.458 A Critical Race Realist should utilize the best of both of these approaches. Third, legal scholars largely do their academic work isolated from their

449 See id. at 35-36. 450 Abner J. Mikva, Bringing the Behavioral Sciences to the Law: Tell It to the Judge or Talk to Your Legislator?, 8 BEHAV. Sc1. & L. 285, 287 (1990). 451 Id. at 287. 452 Id. 453 Id. at 287. 454 Id. at 285-89 (noting that employing social science to shape policy may be most effective with legislatures). 455 Id. at 287. 456 Schuck, supra note 413, at 325. 457 Epstein & King, supra note 437, at 8. 458 Id. 744 CORNELL JOURNAL OF LAw AND PUBLIC POLICY [Vol. 17:683 social science counterparts and suffer from such a failure to dialogue.459 Fourth, law professors, unlike their social scientist counterparts, do not have a stable group of graduate students trained in empirical methodol­ ogy and statistical analysis.460 Thus, legal academics are likely at a hand­ icap in developing an empirical agenda. Thus, to develop a Critical Race Realism, law schools might con­ sider offering not only courses in empirical legal scholarship461 but also empirical legal scholarship courses focused on Critical Race Theory top­ ics.462 Critical Race Theorists may also take any of three steps to ad­ vance Critical Race Realism. First, they may "take an empirical research course".463 Several universities offer programs to train faculty in empiri­ cal research methodology. For example, the University of Michigan, through its Inter-university Consortium for Political and Social Research (ICPSR) Summer Program in Quantitative Methods, offers courses in basic and advanced quantitativ'® analysis.464 Harvard University, through its Institute for Quantitative Social Science, offers a variety of degree and training programs, conferences, and seminars and workshops.465 North­ western recently offered an Empirical Legal Scholarship Workshop.466 Second, Critical Race Theorists could also collaborate with social scien­ tists in other departments467 or the growing number of social scientist law professors.468 An additional source of collaboration could be social

459 See id., at 45-48. 460 Richard L. Revesz, A Defense of Empirical Scholarship, 69 U. CHI. L. REv. I, 169, 188 (2002). 4 61 See Lee Epstein & Gary King, Building an Infrastructure for Empirical Research in the Law, 53 J. LEGAL Eouc. 311, 313 (2003). 4 6 2 Theodore Eisenberg offers a course at Cornell Law School entitled "Empirical Studies in Leading Civil Rights Issues," Cornell Law School 2005-06 Course Offerings, https://sup­ port.la w .cornell .edu/students/forms/Courses_by_ Category_for_Re gi strars_si te/2005-06 _ Courses_by_Category.pdf (last visited Sept. 15, 2006). 463 Epstein & King, supra note 461, at 3 I 5. 464 Inter-university Consortium for Political and Social Research, About the Summer Pro­ gram, http://www.icpsr.umich.edu/training/summer/about.html (last visited October 26, 2006). The mission of the program is "[t]o offer instruction for the primary development and "upgrad­ ing" of quantitative skills by college and university faculty and by nonacademic research scholars[; t]o extend the scope and depth of analytic skills for graduate students, college and university faculty, and research scientists from the public sector[; t]o furnish training for those individuals who expect to become practicing social methodologists[; t]o provide opportunities for social scientists to study those methodologies that have special bearing on specific substan­ tive issues[; and t]o create an environment that facilitates an exchange of ideas related to the development of methodologies on the frontier of social research." Id. 465 The Institute for Quantitative Social Science at Harvard University, About IQSS, http://www.iq.harvard.edu/about_iqss (last visited October 26, 2006). 4 66 Northwestern University School of Law, supra note 257 (providing "the formal train­ ing necessary to design, conduct, and assess empirical studies, and to use statistical software (Stata) to analyze and manage data"). 4 67 Epstein & King, supra note 461; George, supra note 245, at 150. 468 Heise, supra note 244, at 829; Melton et al., supra note 439 (discussing the place of Ph.D. psychologists as law faculty). 2008] TowARD A CRITICAL RACE REALISM 745 science graduate students interested in the intersection of race and law issues. Critical Race Theorists might also actively recruit graduate stu­ dents engaged in social science, race, and law scholarship to law school. Such an approach would possibly add to the pool of minority law stu­ dents and provide law professors with a research assistant, trained in re­ search methodology, for three years. Finally, Critical Race Theorists could simply import social science and empirical scholarship into their own work.

CONCLUSION Critical Race Theory was founded as "a race-based, systematic cri­ tique of legal reasoning and legal institutions."469 It has been critiqued, however, as struggling to define its substantive mission, methodological commitments, and connection to the world outside of academia.470 This Note attempts to provide a specific methodology that is consistent with Critical Race Theory's overarching mission and that has both applied and academic components. Empirical social science is this methodology which should ultimately (1) expose racism where it may be found, (2) identify its effects on individuals and institutions, and (3) put forth a concerted attack against it, in part, via public policy arguments. I call this concept Critical Race Realism. Critical Race Realism is drawn from a long and rich intellectual history. This history started with the growth of interdisciplinary studies in American legal education and traversed its way through intellectual movements at Columbia, Yale, Chicago, and Wisconsin law schools. The recent explosion in empirical legal scholarship and the New Legal Real­ ism Project provide contemporary efforts with which Critical Race Real­ ism must square itself. Ultimately, the intersection of social science, race and law, or race and empirical legal scholarship is not a new nexus. The efforts of Charles Hamilton Houston in ending school segregation point to this fact. Furthermore, there has been growing interest in these areas within recent years. However, given this history and contemporary movement, I advocate that Critical Race Theory incorporate more empir­ ical social science. I do not think that there is an incompatibility between being critical and being empirical. Furthermore, I do not think that such an approach need supplant Critical Race Theory's narrative approach. I do, however, believe empirical social science can greatly enhance Criti­ cal Race Theorists' arguments and advance Critical Race Theory's goals. Accordingly, I hope Critical Race Theorists take steps to indeed make Critical Race Theory more systematic.

469 DELGADO & STEFANCIC, supra note 4. 470 Moran, supra note 9.